State v. Ofodrinwa

No. 20 April 25, 2013 507

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

EUGENE CHIMEZIE OFODRINWA,

Petitioner on Review.

(CC C080583CR; CA A139764; SC S059446)

En Banc

On review from the Court of Appeals.*

Argued and submitted January 13, 2012; resubmitted

January 7, 2013.

Mary M. Reese, Senior Deputy Public Defender, Office of

Public Defense Services, Salem, argued the cause and filed

the brief for petitioner on review. With her on the brief was

Peter Gartlan, Chief Defender.

Timothy A. Sylwester, Assistant Attorney General,

Salem, argued the cause and filed the brief for respondent on

review. With him on the brief were John R. Kroger, Attorney

General, and Anna M. Joyce, Solicitor General.

KISTLER, J.

The decision of the Court of Appeals and the judgment of

the circuit court are affirmed.

______________

*  Appeal from Washington County Circuit Court, Gayle A. Nachtigal, Judge.

241 Or App 214, 250 P3d 405 (2011).

508 State v. Ofodrinwa

Defendant, who was 21 years old at the time of the conduct at issue, was charged

with four counts of second-degree sexual abuse, which, under ORS 163.425(1)

(2005), occurs when a “person subjects another person to sexual intercourse *  * *

and the victim does not consent thereto.” The charges arose after defendant’s

confessed to the police that he had had sexual intercourse with his girlfriend (the

victim), who was 16 years old at that time, on several occasions over the previous

year. At trial, the state relied solely on the victim’s age to prove that she lacked the

capacity to consent. Defendant moved for judgment of acquittal, contending that

the phrase “does not consent” in ORS 163.425 refers only to lack of actual consent

and does not include instances in which the victim lacks the capacity to consent.

The trial court concluded that the phrase “does not consent” refers to both the lack

of actual consent and the lack of capacity to consent. The Court of Appeal affirmed,

relying on its decision in State v. Stamper, 197 Or App 413, 106 P3d 172, rev den,

339 Or 230 (2005). Held: The text and legislative history of the 1991 amendment to

ORS 163.425 demonstrate that phrase “does not consent” in ORS 163.425(1) refers

to both the lack of capacity to consent and the lack of actual consent.

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

affirmed.

Cite as 353 Or 507 (2013) 509

KISTLER, J.

A person commits the crime of second-degree sexual

abuse when “that person subjects another person to sexual

intercourse *  * and the victim does not consent thereto.”

*

ORS 163.425(1) (2005).1 The issue in this case is what

the phrase “does not consent” means. Defendant argues

that it refers only to those instances in which the victim

does not actually consent; the state responds that it also

includes instances in which the victim lacks the capacity to

consent. The trial court agreed with the state and convicted

defendant of second-degree sexual abuse. The Court of

Appeals affirmed. State v. Ofodrinwa, 241 Or App 214, 250

P3d 405 (2011). We allowed defendant’s petition for review

and now affirm the Court of Appeals decision and the trial

court’s judgment.

On December 24, 2007, a Portland police officer

investigated a dispute between defendant and his girlfriend.

During that investigation, the officer learned that defendant

was 21 years old and that his girlfriend (the victim) was

16 years old. Defendant admitted to the officer that he had

had sexual intercourse with the victim on several occasions

during the previous year. Given that information, a grand

jury indicted defendant for four counts of second-degree

sexual abuse. Specifically, the indictment alleged that,

on four occasions “on or between December 11, 2006 to

December 24, 2007,” defendant “unlawfully and knowingly

subject[ed the victim] to sexual intercourse, [the victim] not

consenting thereto by reason of being under 18 years of age.”

Defendant waived his right to a jury trial, and the parties

tried the charges to the court.

At trial, the state relied primarily on defendant’s

statements to the officer to establish that defendant had

engaged in sexual intercourse with the victim. The state

presented no evidence to show that the victim had not

actually consented to sexual intercourse; it relied solely

on the victim’s age to prove that she lacked the capacity

to consent. See ORS 163.315(1)(a) (providing that persons

1

Because the conduct that gave rise to this case occurred between December 11,

2006 and December 24, 2007, ORS 163.425 (2005) applies. Unless otherwise

specified, citations are to the 2005 edition of the Oregon Revised Statutes.

510 State v. Ofodrinwa

“[u]nder 18 years of age” are “considered incapable of

consenting to a sexual act”). At the end of the state’s case,

defendant moved for a judgment of acquittal on two grounds.

First, he argued that the state had failed to corroborate

his confessions to the officer. Second, he argued that ORS

163.425 required proof that the victim had not actually

consented; he contended that the victim’s lack of capacity

to consent was not sufficient to prove a violation of that

statute.

The trial court found that the state had not

corroborated defendant’s confessions to three of the four

charges and acquitted him of those charges. The remaining

charge arose out of an incident that allegedly occurred

shortly after the victim’s sixteenth birthday. The trial court

ruled that the state had corroborated defendant’s confession

to that charge. Regarding defendant’s alternative argument,

it ruled that proof that the victim lacked the capacity to

consent because of her age was sufficient to prove that she

“d[id] not consent” within the meaning of ORS 163.425.

After denying defendant’s motion for judgment of acquittal

with regard to one charge, the trial court found him guilty

of that charge and entered judgment accordingly.

The Court of Appeals affirmed the trial court’s

judgment. It relied on its decision in State v. Stamper, 197

Or App 413, 106 P3d 172, rev den, 339 Or 230 (2005), for

the proposition that the victim’s lack of capacity to consent

was sufficient to prove that she “d[id] not consent” within

the meaning of ORS 163.425. See Ofodrinwa, 241 Or App

at 216. The Court of Appeals also concluded that the state

had corroborated defendant’s confession regarding the one

incident. Id. at 225. We allowed defendant’s petition for

review and asked the parties to focus on the first issue that

defendant raised—whether the phrase “does not consent”

in ORS 163.425 refers only to actual consent or whether it

also refers to the lack of capacity to consent. We limit our

discussion to that issue.

This court has identified a methodology for

construing statutes to determine the legislature’s intent.

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

(explaining that methodology). However, as the Court of

Cite as 353 Or 507 (2013) 511

Appeals observed in Stamper, “mechanical application” of

that methodology does not lead to a clear answer regarding

the meaning of ORS 163.425. 197 Or App at 426. Rather, as

the court reasoned in Stamper, “depending on which rules

[of construction] are given emphasis, different readings of

[ORS 163.425] may be justified.” Id. We agree with that

observation. In large part, the difficulty that the Court of

Appeals identified arises from the fact that, in enacting

and amending the statutes prohibiting sexual abuse, the

legislature has not always been completely consistent in the

way that it has viewed consent.

As explained more fully below, in enacting the

1971 Criminal Code, 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. In 1979, the legislature

amended the sexual abuse statutes in a way that, at least

textually, suggests that the phrase “does not consent” applies

only to the lack of actual consent. In 1983, the legislature

again amended the sexual abuse statutes to add a provision,

which is now codified as ORS 163.425.2 Although the issue

is not free from doubt, the 1983 legislature appears to

have used the phrase “does not consent” in ORS 163.425

to refer only to the lack of actual consent. Finally, in 1991,

the legislature modified the sexual abuse statutes to create

three degrees of that crime and provided a defense to all

three degrees of that crime. In doing so, the legislature used

the phrase “does not consent” in ORS 163.425 to refer both

to the lack of the capacity to consent due to age and also to

the lack of actual consent.

Before we consider the effect of the 1991 amendment

on the 1983 amendment, we first describe the context that

preceded the 1983 amendment. We then discuss the 1983

amendment to the sexual abuse statutes. Finally, we consider

the meaning and effect of the 1991 amendment to the sexual

2

As discussed more fully below, the 1983 amendment initially provided an

additional ground for committing first-degree sexual abuse. See Or Laws 1983,

ch 564, § 1. In 1991, the legislature divided what had been first-degree sexual

abuse into first- and second-degree sexual abuse and reclassified what had been

second-degree sexual abuse as third-degree sexual abuse. See Or Laws 1991, ch

830, §§ 1-3.

512 State v. Ofodrinwa

abuse statutes on the 1983 legislature’s understanding of

the phrase “does not consent.”

I.  THE CONTEXT OF THE 1983 AMENDMENT

The context for interpreting a statute’s text includes

“the preexisting common law and the statutory framework

within which the law was enacted.” Klamath Irrigation

District v. United States, 348 Or 15, 23, 227 P3d 1145 (2010)

(internal quotation marks omitted). In this case, that context

consists of the role that consent has played in defining

sexual offenses before 1971, in the 1971 Criminal Code, and

in the 1979 amendment to the second-degree sexual abuse

statute.

A.  Cases Before 1971

Before 1971, the issue of consent in sex crimes arose

primarily, if not exclusively, in interpreting the crime of

rape.3 From 1843 until 1969, the Oregon statute prohibiting

rape provided, with variations not material here, that

“[a]ny person over the age of 16 years who carnally knows

any female child under the age of 16 years, or any person who

forcibly ravishes any female, is guilty of rape[.]” See former

ORS 163.210 (1969); cf. General Laws of Oregon, Crim Code,

ch II, § 525, p 408 (Deady & Lane 1843-1872) (defining rape

in essentially the same way). Under that statute, sexual

intercourse constituted rape in two circumstances: (1) if the

defendant “forcibly ravishe[d]” the victim or (2) if the victim

lacked the capacity to consent because of age.

Textually, the pre-1971 rape statute did not require

a lack of consent if the state sought to prove that the

defendant had “forcibly ravishe[d]” the victim. The Oregon

courts, however, read a consent requirement into the

statute; they required the state to prove that the “act [had]

been committed forcibly and without the consent of the

woman.” State v. Risen, 192 Or 557, 560, 235 P2d 764 (1951);

accord State v. Gilson, 113 Or 202, 206, 232 P 621 (1925).

3

Before 1971, the legislature prohibited sodomy but made that class of sexual

acts criminal without regard to the victim’s consent. See former ORS 167.040 (1969);

Commentary to Criminal Law Revision Commission Proposed Oregon Criminal

Code, Final Draft and Report § 105 (July 1970). Also, there was no analogue to the

current sexual abuse statutes before 1971. As a result, before 1971, the issue of

consent in sex crimes arose primarily in connection with the rape statute.

Cite as 353 Or 507 (2013) 513

More specifically, the state had to show that the victim

had met the defendant’s force with genuine resistance. See

Risen, 192 Or at 560 (reasoning that “mere words” were not

sufficient to establish resistance; rather, resistance “must

be reasonably proportionate to [the victim’s] strength and

*  * opportunities”). If the state failed to prove genuine

*

resistance at any point during the act, then the jury could

infer that the victim had consented to it and that no rape

had occurred. Id. at 561.

Before 1971, the Oregon courts viewed an allegation

that the victim lacked the capacity to consent because of the

victim’s age as equivalent to an allegation that the defendant

had forced himself on the victim without her consent. See

State v. Lee, 33 Or 506, 510, 56 P 415 (1899) (treating those

allegations as equivalent); State v. Horne, 20 Or 485, 486,

26 P 665 (1891) (holding that allegations regarding forcible

compulsion were surplusage because the indictment alleged

that the defendant had sexual intercourse with a victim

under the age of consent). It follows that, before 1971, a lack

of actual consent and a lack of the capacity to consent were

equivalent ways of showing that the victim did not consent.

See Wayne R. LaFave and Austin W. Scott, Jr., Handbook on

Criminal Law § 57, 408 (1972) (describing those two ways of

proving that the victim had not consented as equivalent).

B.  The 1971 Criminal Code

In 1971, the Oregon legislature undertook a

comprehensive revision of the criminal code. Among other

things, it revised the definition of rape, made consent a

defense to sodomy, and added a new crime, sexual abuse.4

See Or Laws 1971, ch 743, §§ 109-116. The legislature also

defined generally when a person will be “considered incapable

of consenting to a sexual act.” Id. § 105. That definition both

codified and refined the existing law. It provided that “[a]

person is considered incapable of consenting to a sexual act

if [the person] is: (1) [u]nder 18 years of age; or (2) [m]entally

defective; or (3) [m]entally incapacitated; or (4) [p]hysically

helpless.” Id.; see Commentary to Criminal Law Revision

Commission Proposed Oregon Criminal Code, Final Draft

4

Sexual abuse, as defined in the 1971 Criminal Code, prohibited certain

instances of nonconsensual sexual contact. Or Laws 1971, ch 743, §§ 115-116.

514 State v. Ofodrinwa

and Report § 105 (July 1970) (explaining the sources of that

definition).

The 1971 Criminal Code retained the understanding

of consent that had preceded it. For 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.

See Commentary to Criminal Law Revision Commission

Proposed Oregon Criminal Code, Final Draft and Report

§ 105 (July 1970). In defining when a person lacks the

capacity to consent, the drafters of the 1971 code explained

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

crimes proscribed in this article [defining sexual crimes].”

Id. They added that,

“[g]enerally speaking, a sexual act is committed upon

a person ‘without his [or her] consent’ in the following

instances: (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.”

Id. The drafters of the 1971 code thus viewed those three

situations as alternative ways of proving the same thing—a

lack of consent.

That proposition is perhaps most evident in the

definition of second-degree sexual abuse in the 1971 code.5

In defining that crime, the 1971 legislature used the phrase

“does not consent” to refer to both the lack of actual consent

and the lack of the capacity to consent. Specifically, section

115(1) of the 1971 code provided,

“A person commits the crime of sexual abuse in the second

degree if he subjects another person to sexual contact; and

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

or

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

mentally defective, mentally incapacitated or physically

helpless.”

Or Laws 1971, ch 743, § 115(1). At first blush, it appears

that the legislature intended to distinguish between the

5

What the legislature classified as second-degree sexual abuse in 1971 was

later reclassified (and is currently classified) as third-degree sexual abuse.

Cite as 353 Or 507 (2013) 515

lack of actual consent in paragraph (a) and specified types

of the lack of capacity to consent in paragraph (b). However,

a defense to the crime of second-degree sexual abuse

made clear that the statutory phrase “does not consent” in

paragraph (a) also referred to the lack of capacity to consent

due to age.

Specifically, section 115(2) provided a defense to the

crime of second-degree sexual abuse if “the victim’s lack of

consent was due solely to incapacity to consent by reason

of being under 18 years of age[.]” Or Laws 1971, ch 743,

§ 115(2).6 In that circumstance, if the victim was more than

14 years old and the defendant was less than four years

older than the victim, then the defendant was not guilty of

second-degree sexual abuse. Id. That defense necessarily

rested on the premise that the phrase “does not consent”

in paragraph (a) of the 1971 second-degree sexual abuse

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

*

reason of being under 18 years of age[.]”7

One other point is worth noting about the 1971

Criminal Code. The 1971 legislature departed from the

earlier statutory definition of rape by creating degrees

of that crime, which it distinguished primarily by the

circumstances evidencing a lack of consent. For instance,

the 1971 legislature defined first-degree rape, in part, as

sexual intercourse when “(a) [t]he [victim] is subjected to

forcible compulsion by the [defendant]; or (b) [t]he [victim]

is under 12 years of age[.]” Or Laws 1971, ch 743, § 111(1). It

defined second-degree rape as sexual intercourse when the

victim either is “incapable of consent by reason of mental

defect, mental incapacitation or physical helplessness” or

is “under 14 years of age.” Id. § 110(1). Finally, it defined

6

The legislature also provided a slightly different age-related defense for

second- and third-degree rape and second- and third-degree sodomy. Or Laws

1971, ch 743, § 108. That defense is codified as ORS 163.345.

7

The legislative history is consistent with the text of the 1971 second-degree

sexual abuse statute. The commentary to section 115(2) provided,

“The purpose of this defense is to exclude from criminal sanction certain

activity by adolescents, e.g., the ‘petting party’ between a 14, 15 or 16 year old

‘victim’ and another young though criminally responsible person of slightly

greater age. The age of criminal responsibility is 14 in the proposed Code.”

Commentary to Criminal Law Revision Commission Proposed Oregon Criminal

Code, Final Draft and Report § 115(2) (July 1970).

516 State v. Ofodrinwa

third-degree rape as sexual intercourse when the victim

is under 16 years of age. Id. § 109(1). The 1971 legislature

accordingly identified different circumstances that

evidenced a lack of consent, not to distinguish the lack of

actual consent from the lack of the capacity to consent, but

to distinguish different degrees of a crime, all of which were

premised on a lack of consent however evidenced.8

C.  The 1979 Amendment to Second-Degree Sexual Abuse

In 1979, the Oregon Court of Appeals rejected an

argument that the phrase “does not consent” in the 1971

second-degree sexual abuse statute referred only to actual

consent. See State v. Landino, 38 Or App 447, 590 P2d 737,

rev den, 286 Or 449 (1979). The defendant in that case

had noted that second-degree sexual abuse, as defined in

the 1971 code, prohibited sexual contact if, as paragraph

(a) of that statute provided, the victim “does not consent”

or, as paragraph (b) provided, the victim “is incapable of

consent by reason of being mentally defective, mentally

incapacitated or physically helpless.” He reasoned that,

because the legislature had identified specific bases for

the lack of capacity to consent in paragraph (b), the phrase

“does not consent” in paragraph (a) referred only to a lack of

actual consent. The Court of Appeals disagreed, reasoning,

“[W]e construe ORS 163.415(1)(a) [(1971)] to apply

whether there is nonconsent in fact or as a result of

incapacity resulting from any of the four conditions listed

in ORS 163.315 [the statute defining when a person lacks

the capacity to consent]. The listing of three of those

circumstances in subsection (1)(b) is redundant.”

Id. at 451. The Court of Appeals accordingly held that,

because a person under the age of 18 lacks the capacity to

consent, see ORS 163.315, that person “does not consent”

within the meaning of the 1971 second-degree sexual abuse

statute. Landino, 38 Or App at 451.

After the Court of Appeals issued its decision and

while the defendant’s petition for review was pending in

8

The 1971 legislature also made the lack of consent an element of sodomy

and defined degrees of that crime that distinguished, as the legislature had done

for the crime of rape, among the different degrees of sodomy primarily on the

circumstances evidencing a lack of consent. See Or Laws 1971, ch 743, §§ 112-114.

Cite as 353 Or 507 (2013) 517

this court, the City of Springfield asked the legislature to

“validate the Court of Appeals interpretation” in Landino

by amending the second-degree sexual abuse statute to

specify that a lack of consent could be based on the victim’s

age. See Minutes, House Committee on Judiciary, HB 2559,

May 8, 1979, 2 (explaining the reason for the requested

amendment). The specific means that the city proposed (and

that the legislature ultimately enacted) of “validat[ing]” the

Court of Appeals decision was to add the victim’s age to

paragraph (b) of the second-degree sexual abuse statute as

another basis for the victim’s being “incapable of consent.”

See id.

Judged solely by its text, the 1979 amendment

cut against rather than validated the Court of Appeals’

reasoning in Landino. Adding the victim’s age to paragraph

(b) of the 1971 second-degree sexual abuse statute implied

that paragraph (b) defined those instances in which a

person lacked the capacity to consent (age and mental and

physical incapacity). It also implied that the phrase “does

not consent” in paragraph (a) was limited to the lack of

actual consent, contrary to the reasoning in Landino.

The legislative history of the 1979 amendment looks

in a different direction and is consistent with an intent to

adhere to the Court of Appeals’ reasoning in Landino. See

Goodyear Tire & Rubber Co. v. Tualatin Tire & Auto, 322 Or

406, 415-16, 908 P2d 300 (1995) (considering the legislative

history of related statutes as context), modified on recons,

325 Or 46, 932 P2d 1141(1997). In discussing the proposed

amendment, a member of the House Committee on Judiciary

expressed concern that amending paragraph (b) to include

age as a basis for the victim’s incapacity to consent would

“confir[m] that this was not [currently] in the statute.”

Minutes, House Committee on Judiciary, HB 2559, May 8,

1979, 3. Another member replied that “he isn’t sure that [the

proposed bill would require] that construction especially if

the committee record is clear enough on the point.” Id. After

that discussion, the committee approved the bill and sent it

to the House with a “do pass” recommendation. Id.

When the bill reached the Senate, some members of

the Senate Committee on Judiciary described the proposed

518 State v. Ofodrinwa

amendment as a “technical” one that would make explicit

what the statute already implied—that a person who lacks

the capacity to consent due to age “does not consent.” See

Minutes, Senate Committee on Judiciary, HB 2559, May

31, 1979, 5-6. At a later hearing, one senator explained that

the second-degree sexual abuse statute, as it then existed,

applied to victims who were between 14 and 18 years of age

but did not apply to anyone under 14 years of age. Minutes,

Senate Committee on Judiciary, HB 2559, June 20, 1979, 9.9

He reasoned that the amendment was necessary to prohibit

sexual contact with victims younger than 14 years of age.

Id. With that explanation, the Senate committee approved

the amendment and sent it to the Senate with a “do pass”

recommendation. Id. The history of the 1979 amendment

suggests that the legislature understood that the phrase

“does not consent” referred to the lack of capacity to consent,

as well as to the lack of actual consent. In that respect, the

history and the text of the 1979 amendment provide differing

perspectives on the meaning of the 1983 amendment.

II.  THE 1983 AMENDMENT

In 1983, the legislature enacted what is now

codified as ORS 163.425. See Or Laws 1983, ch 564, § 1.

As initially passed, the 1983 amendment did not create a

stand-alone crime; rather, it provided an additional ground

for committing first-degree sexual abuse. Id. As amended in

1983, the first-degree sexual abuse statute provided,

“A person commits the crime of sexual abuse in the first

degree when that person:

“(a)  Subjects another person to sexual contact; and

“(A)  The victim is less than 12 years of age; or

“(B)  The victim is subjected to forcible compulsion by

the actor; or

“(b)  Subjects another person to sexual intercourse

* * * and the victim does not consent thereto.”

Id. (boldface text added in 1983). In 1983, first-degree sexual

abuse was a Class C felony. Id.

9

The senator apparently viewed the phrase “does not consent” as referring to

those victims who did not actually consent and also to those victims to whom the

affirmative defense applied (victims between 14 and 18 years of age).

Cite as 353 Or 507 (2013) 519

In determining the 1983 legislature’s intent in using

the phrase “does not consent,” we begin with the text of that

amendment. Defendant argues that the legislature’s use of

the auxiliary verb “does” rather than “can” or “cannot” shows

that the phrase does not refer to a victim’s lack of capacity

to consent. He reasons that the phrase “does not consent”

refers to an act that the actor is capable of performing; it

does not refer to an act that the actor lacks the capacity to

perform. Although that is a plausible interpretation of the

text, it is not the only plausible interpretation.

As a general matter, the verb “consent” means “to

express a willingness (as to accept a proposition or carry out

a particular action) : give assent or approval : AGREE[.]”

Webster’s Third New Int’l Dictionary 482 (unabridged ed

2002). A person who is incapable of giving consent stands

in the same position as one who elects not to give it; in

each case, the person “does not consent.” We cannot find in

the text of the 1983 amendment a definitive answer to the

question whether “does not consent” is limited to persons

who have the capacity to consent, as defendant argues, or

whether it also includes persons who lack the capacity to

consent, as the state argues.

The context provides additional insight, but the

answer that the context suggests varies depending on the

context on which one focuses. The 1971 Criminal Code and

the cases that preceded it clearly point in favor of the state’s

interpretation of the phrase “does not consent.” Both this

court’s decisions before 1971 and the 1971 Criminal Code

viewed the lack of capacity to consent and lack of actual

consent as equivalent. Indeed, as discussed above, the 1971

legislature used the phrase “does not consent” in the second-

degree sexual abuse statute to refer both to a victim who

does not actually consent and also to a victim who does

not consent because the victim is underage. Read in light

of that context, the phrase “does not consent” in the 1983

amendment refers to the lack of the capacity to consent as

well as the lack of actual consent.

The text of the 1979 amendment to the second-

degree sexual abuse statute points in a different direction.

As explained above, the 1979 legislature amended

paragraph (b) of the second-degree sexual abuse statute

520 State v. Ofodrinwa

to list age as one reason why a victim lacks the capacity

to consent. As a result of that amendment, the text of the

second-degree sexual abuse statute implied that the phrase

“does not consent” in paragraph (a) of that statute referred

only to a lack of actual consent. However, as also explained

above, the history of the 1979 amendment points in the

other direction. One aspect of the 1979 amendment thus

supports defendant while another supports the state.

An additional contextual clue provides support

for defendant’s position. In 1983, sexual intercourse with

a person under 16 years of age constituted third-degree

rape and was a Class C felony. ORS 163.355 (1983). Sexual

intercourse with a person under 18 years of age constituted

contributing to the sexual delinquency of a minor and was

a Class A misdemeanor. ORS 163.435 (1983). If, as the state

argues, the phrase “does not consent” in the 1983 amendment

referred to the victim’s lack of capacity to consent because

of age, then the 1983 amendment would impose the same

punishment for engaging in sexual intercourse with a

person under the age of 18 that third-degree rape imposed

on engaging in sexual intercourse with a person under 16.10

Additionally, if the state’s interpretation of the

1983 amendment were correct, then that amendment would

prohibit the same conduct (sexual intercourse with a person

under 18 years of age) that the crime of contributing to the

sexual delinquency of a minor did, but the two crimes would

impose different penalties.11 To be sure, nothing prevents

the legislature from enacting duplicative or overlapping

statutes, but we ordinarily hesitate to attribute that intent

to the legislature. At a minimum, that context causes us to

question whether the 1983 legislature departed from the

understanding of “does not consent” expressed in the 1971

Criminal Code and adopted instead the meaning of “does

not consent” suggested by the text of the 1979 amendment

to second-degree sexual abuse.

10

In 1983, both third-degree rape and first-degree sexual abuse were Class C

felonies. See ORS 163.355 (1983) (third-degree rape); ORS 163.425 (1983) (first-

degree sexual abuse).

11

In 1983, first-degree sexual abuse was a Class C felony while contributing

to the sexual delinquency of a minor was a Class A misdemeanor. See ORS 163.435

(contributing to the sexual delinquency of a minor).

Cite as 353 Or 507 (2013) 521

Although the text and context of the 1983

amendment do not point in a single direction, the legislative

history of that amendment provides stronger support for

defendant’s position. Briefly stated, the legislative history

shows that the sponsors of Senate Bill (SB) 483, the bill that

became the 1983 amendment to first-degree sexual abuse,

sought to fill a gap that existed when a defendant had

engaged in sexual intercourse without the victim’s consent

but the state could not prove forcible compulsion.12 Tape

Recording, House Committee on Judiciary, SB 483, June 30,

1983, Tape 485, Side A (statement of Peter Sandrock).

Peter Sandrock, one of the proponents of the bill,13 told

the committee that, in that circumstance, the jury should

acquit the defendant of first-degree rape (a Class A felony)

and convict the defendant of second-degree sexual abuse (a

Class A misdemeanor). See id. He explained that, to fill that

gap, SB 483 added a new ground for proving first-degree

sexual abuse (a Class C felony); specifically, it criminalized

sexual intercourse without the victim’s consent. Id.

Sandrock told the committee that, in addition to

reaching those instances in which the state had proved that the

victim had not consented but had not proved forcible compulsion,

“We’re probably reaching the sort of behavior * * * in many

cases of someone who abuses a position of authority to

enter into sexual intercourse with someone. I can think,

for example of the, the rogue cop who takes roadside bail,

so to speak. The victim does not consent to the intercourse

having been pulled over for some alleged traffic violation,

but she is not subjected to any form of forcible compulsion.

The officer does not threaten her with a gun, there are no

implied threats. It is merely his position that causes her

to succumb to the intercourse. The employer situation in

which the victim communicates [a] lack of consent, but is

not subjected to any form of forcible compulsion.”

Id.

12

Except as noted below, the discussions of SB 483 in both the House

and Senate committees were essentially the same. Rather than repeat those

discussions, we have focused on the discussions before the House Committee on

Judiciary.

13

Sandrock was the district attorney for Benton County and took the lead in

both the House and Senate hearings in explaining why the bill was necessary and

what it would cover.

522 State v. Ofodrinwa

Sandrock observed that the bill did not define

the phrase “does not consent.” Id. at Tape 486, Side A.

He explained, however, that “there has been no problem

prosecuting cases of sex abuse in the second degree when

the jury has been either given a dictionary definition or

been told to figure out what no consent means.” Id. He

told the House Committee on Judiciary that he and a

representative of the defense bar had agreed on a definition

of “without consent,” although he thought that no definition

was necessary. When asked what the agreed-upon definition

was, Sandrock testified,

“ Does not consent’ means that a person did not presently

‘

and voluntarily agree by word or conduct to engage in the

sexual contact at issue and that the defendant knew at the

time of the sexual contact that the person did not so agree.”

Id.

When asked why the Senate had not included that

definition in SB 483, Sandrock speculated that it “may have

been overlooked.” Id. At that point, Senator Hendrickson14

told the House committee that, among other things, the

Senate had viewed the definition as redundant. Id. She

explained that, as one of the sponsors of the bill, she had

no objection to the definition but thought it unnecessary.

Id. She also noted that adding the definition to SB 483

would require the Senate to concur in the amendment and

expressed a concern that amending the bill at that stage

of the legislative session might derail the bill’s enactment.

With that discussion, the House Committee on Judiciary

approved SB 483 without adding the definition of “does

not consent” and sent the bill to the House with a “do pass”

resolution. The House passed the bill, as the Senate had.

In large part, the legislative history supports

defendant’s interpretation of the phrase “does not consent.”

When asked what the phrase meant, Sandrock defined it as

meaning the lack of actual consent.15 Similarly, in describing

14

Senator Hendrickson had sponsored the bill and appeared with Sandrock

before the House committee in support of it.

15

Ordinarily, the failure to enact legislation, such as a proposed definition, does

not provide persuasive evidence of the legislature’s intent. Berry v. Branner, 245

Cite as 353 Or 507 (2013) 523

the “sort of behavior” that the bill would reach, Sandrock

identified situations in which the victim did not actually

consent but there was no forcible compulsion. Finally, in

explaining the problem the bill sought to remedy, Sandrock

told both committees that the bill filled a gap in the statutes

when the state could not prove forcible compulsion but

could prove that the victim had not consented. The absence

of consent to which Sandrock referred was the absence of

actual consent, not the lack of capacity to consent.16

The legislative history does not all look in one

direction, however. When the bill was in front of the

Senate Committee on Judiciary, the counsel for the Senate

committee explained that there was no need to define the

phrase “does not consent” because that phrase was a “term

of art” that had been construed in the context of the second-

degree sexual abuse statute. See Tape Recording, Senate

Committee on Judiciary, SB 483, June 7, 1983, Tape 189,

Side B (statement of Nina Johnson). As of 1983, only one

appellate decision, State v. Landino, had interpreted the

phrase “does not consent” in the second-degree sexual abuse

statute. As noted, the Court of Appeals had held in Landino

that the phrase “does not consent” refers to the lack of

capacity to consent due to age as well as to the lack of actual

consent. It is possible to infer from counsel’s explanation

that the 1983 legislature declined to enact the proposed

definition of “does not consent” because it found Landino’s

interpretation of that phrase sufficient. That inference,

however, runs counter to the rest of the legislative history of

the 1983 amendment.

Or 307, 311, 421 P2d 996 (1966). In this case, however, SB 483 contained a phase

“does not consent” that the legislature did enact and Sandrock told the legislature

what that phrase meant. In these circumstances, Sandrock’s explanation of the

phrase’s meaning bears on the legislature’s intent.

16

Additionally, Sandrock told the Senate Committee on Judiciary that “[t]he

reference to ‘the victim does not consent’ [in SB 483] does not include a lack of

capacity to consent—those situations in which the [victim] lacks the capacity to

consent to a sexual act are defined elsewhere in the rape code.” Tape Recording,

Senate Committee on Judiciary, SB 483, Apr 7, 1983, Tape 85, Side B. As the

Court of Appeals explained in Stamper, that statement is ambiguous. See 197 Or

App at 424. On the one hand, Sandrock said that the phrase “does not consent”

does not include a lack of capacity to consent. On the other hand, he qualified

that statement by noting that a victim’s lack of capacity to consent was defined

elsewhere, suggesting that those definitions might bear on the absence of consent.

524 State v. Ofodrinwa

The text, context, and history of the 1983

amendment permit different inferences regarding the

legislature’s intent in enacting the phrase “does not

consent.” The legislative history of the amendment provides

the greatest support for defendant’s position, but the text

and context provide conflicting signals. We conclude that we

need not resolve those conflicting signals to decide this case.

Even if the 1983 legislature understood that the phrase

“does not consent” refers only to the lack of actual consent,

the legislature amended the sexual abuse statutes again

in 1991. As explained below, we conclude that the 1991

legislature understood, as the 1971 legislature had, that the

phrase “does not consent” refers to the lack of the capacity

to consent due to age, as well as the lack of actual consent.

As we also explain below, the 1991 legislature’s enactment

is the last word on the subject and, as such, is dispositive.

III.  THE 1991 AMENDMENT

In 1991, the legislature enacted a bill that focused on

the crime of sexual abuse and made essentially two changes

to that crime. See Or Laws 1991, ch 830. The first change

was to divide the two degrees of sexual abuse into three

degrees of that crime.17 As a result of the 1991 amendment,

what had been second-degree sexual abuse became third-

degree sexual abuse. Id. § 1. The amendment also modified

the crime of first-degree sexual abuse by reclassifying the

1983 amendment (which had provided one way of proving

first-degree sexual abuse) as second-degree sexual abuse.

Id. § 2. Finally, the amendment modified the remaining

elements of first-degree sexual abuse. Id. § 3.18

The second change to the crime of sexual abuse

involved the defenses to that crime. Before 1991, the

legislature had provided an age-related defense to what was

17

The amendment also made conforming changes in related laws. See Or

Laws 1991, ch 830, §§ 5-8. Additionally, it directed the Oregon Criminal Justice

Council to report on “the general profile of sex offenders by offense and the types

of sentences being imposed for each offense.” Id. § 10.

18

The 1991 amendment provided that subjecting a victim under 14 years of

age (as opposed to under 12 years of age) to sexual contact constituted first-degree

sexual abuse. Or Laws 1991, ch 830, § 3. It also added a new ground for first-degree

sexual abuse, intentionally causing a person under 18 years of age to touch certain

parts of an animal for sexual purposes. Id.

Cite as 353 Or 507 (2013) 525

then second-degree sexual abuse but had not provided a

similar defense to the crime of first-degree sexual abuse. See

ORS 163.415 (1989) (former second-degree sexual abuse);

ORS 163.425 (1989) (former first-degree sexual abuse). The

1991 amendment repealed the age-related defense that was

specific to second-degree sexual abuse and provided an age-

related defense for the reclassified crimes of first-, second-,

and third-degree sexual abuse. Or Laws 1991, ch 830, §§ 1,

4. Specifically, the 1991 legislature amended ORS 163.345

to provide,

“In any prosecution under ORS 163.355, 163.365, 163.385,

163.395, 163.415 [third-degree sexual abuse], 163.425

[second-degree sexual abuse], or section 3 of this 1991

Act [first-degree sexual abuse] in which the victim’s lack of

consent was due solely to incapacity to consent by reason of

being less than a specified age, it is a defense that the actor

was less than three years older than the victim at the time

of the alleged offense.”

See id. § 4 (boldface text added by 1991 amendment).

Read together, sections two and four of the 1991

amendment provide that, when a defendant is charged with

engaging in sexual intercourse with a victim who “does not

consent” and “the victim’s lack of consent was due solely to

incapacity to consent by reason of being less than a specified

age, it is a defense that the actor was under three years older

than the victim at the time of the alleged offense.” Only one

conclusion can be drawn from the text of those two sections:

The 1991 legislature understood that the phrase “does not

consent” in the crime of second-degree sexual abuse refers to

a victim whose “lack of consent was due solely to incapacity

to consent by reason of being less than a specified age” as well

as to a victim who does not actually consent.19 Otherwise, the

legislature’s decision to provide an age-related defense to

the newly reclassified crime of second-degree sexual abuse

would serve no purpose. See State v. Cloutier, 351 Or 68, 98,

19

The age-related defense to second-degree sexual abuse in the 1991

amendment evidences the legislature’s intent in precisely the same way that

the age-related defense to second-degree sexual abuse did in the 1971 Criminal

Code. Both defenses make clear that the phrase “does not consent” is not limited

to situations in which the victim does not actually consent but also includes

situations in which the lack of consent results from the victim’s age.

526 State v. Ofodrinwa

261 P3d 1234 (2011) (observing that “an interpretation that

renders a statutory provision meaningless should give us

pause”).

The legislative history of the 1991 amendment

demonstrates that the legislature purposefully provided an

age-related defense to ORS 163.425. As initially proposed,

House Bill (HB) 2542, the bill that became the 1991

amendment, divided the two degrees of sexual abuse into

three degrees of that crime and made conforming changes

in related laws. See HB 2542 (Jan 31, 1991). That version of

the bill retained the age-related defense for what became

third-degree sexual abuse but did not provide an age-

related defense for the newly reclassified crimes of first-

and second-degree sexual abuse. Id. At a work session on

the bill, the members of the House Subcommittee on Crime

and Corrections considered extending the defense to third-

degree sexual abuse to the other degrees of that crime but did

not do so. See Tape Recording, HB 2542, House Committee

on Judiciary, Subcommittee on Crime and Corrections, Feb

19, 1991, Tape 27, Side B. Accordingly, HB 2542, as it passed

out of the House, provided an age-related defense only for

third-degree sexual abuse. See HB 2542 (A-Engrossed).

When the Senate Committee on Judiciary considered

the bill, an amendment was proposed that repealed the

age-related defense to third-degree sexual abuse and made

the slightly different age-related defense in ORS 163.345

applicable to all three degrees of sexual abuse.20 Counsel for

the Senate committee explained:

“Under existing law, it is a defense to the misdemeanor

abuse offense that the victim was less than four years

younger than the perpetrator and was more than 14 years

old. No similar provision applies to abuse in the second

degree as created by this measure, even though that

defense is available for rape in the second and third degrees

and for sodomy in the second and third degrees. So, for

the purposes of consistency, an amendment was prepared

and included here that would apply that three-year age

20

Initially, the age-related defense applied to persons who were no more than

four years older than the victim. Or Laws 1971, ch 743, § 115(2). As modified in

1991, it applied to persons who were no more than three years older than the

victim. Or Laws 1991, ch 830, § 4.

Cite as 353 Or 507 (2013) 527

difference defense [in the statute providing an age-related

defense for rape and sodomy] to both abuse 3 under the new

scheme and abuse 2. So, it actually—with respect to [the

crime of third-degree sexual abuse], it would change [the

existing defense] from four to three years, but otherwise

expand it and make it applicable to persons charged with

both offenses.”

Tape Recording, Senate Committee on Judiciary, HB

2542, June 10, 1991, Tape 224, Side A (statement of Ingrid

Swenson).21 A representative from the Oregon State Sheriffs’

Association expressed his agreement with the amendment,

and the committee voted to send the bill, as amended, to

the Senate with a “do pass” recommendation. Id. The Senate

passed the bill, as amended.

Because the House and Senate versions of the bill

differed, a conference committee was convened to reconcile

the two versions of the bill. The first difference that the

committee discussed was the extension of an age-related

defense to first- and second-degree sexual abuse. See Tape

Recording, Conference Committee, HB 2542, June 28,

1991, Tape 1, Side A (statement of committee counsel Holly

Robinson). After the counsel for the Conference Committee

identified how the two versions differed, Representative

Johnson explained his understanding of the difference:

“What you’re saying is that [the Senate] expanded the

concept that, if you’re within a certain number of years of

the other person, it’s not the same illegal act *  * that it

*

might be if you were 20 years older.”

Id. (statement of Representative Johnson). He added that

the bill, as amended in the Senate, expanded the defense

to both first-degree sexual abuse and “what’s now sex

abuse in the second degree.” After Representative Johnson

spoke, the other representatives from the House said that

they had “no problem with that” change. Id. (statements of

Representatives Mannix and Sunseri). With that discussion,

the House concurred in the Senate amendment. Id.

21

Counsel’s explanation is not completely consistent with the text of the

proposed amendment. The proposed amendment made the defense applicable to

all three degrees of sexual abuse.

528 State v. Ofodrinwa

The legislative history of the 1991 amendment

demonstrates that the legislature purposefully chose to

provide an age-related defense for the newly reclassified

crimes of first-, second-, and third-degree sexual abuse. Not

only does that follow from the Senate Judiciary committee’s

discussion of the amendment, but the Conference Committee

concurred in the Senate version of HB 2542. In so doing,

the members of the Conference Committee expressly

recognized that extending an age-related defense to second-

degree sexual abuse would make it legal for persons within

a specified age range to engage in acts that would otherwise

be illegal—i.e., acts that would otherwise be illegal because

the victim was under a specified age. Implicit in that

recognition is the proposition that the phrase “does not

consent” in the second-degree sexual abuse statute includes

instances in which “the victim’s lack of consent [i]s due

solely to incapacity to consent by reason of being less than

a specified age[.]” See Or Laws 1991, ch 830, § 4 (making

the age-related defense applicable to second-degree sexual

abuse).

That proposition is also explicit in the text of

sections two and four of the 1991 amendment. As noted,

section two of that amendment provides that the crime of

second-degree sexual abuse occurs when the victim “does

not consent” to sexual intercourse, and section four of that

amendment provides a defense “[i]n any prosecution under

* * * ORS 163.425 * * * in which the victim’s lack of consent

was due solely to incapacity to consent by reason of being

less than a specified age[.]” Or Laws 1991, ch 830, §§ 2, 4.

The defense that the legislature provided to ORS 163.425

rests explicitly on the proposition that a victim’s lack of

consent may, in some prosecutions under ORS 163.425,

derive from the victim’s lack of capacity to consent due to

age. That defense is integrally connected to the elements

of ORS 163.425 and informs their meaning. Cf. Wetherell

v. Douglas County, 342 Or 666, 678, 160 P3d 614 (2007)

(explaining that we should not look at one subsection of a

statute in a vacuum but should construe “each part together

with the other parts in an attempt to produce a harmonious

whole”).

Cite as 353 Or 507 (2013) 529

Defendant advances three contrary arguments.

He argues initially that the 1991 legislature’s intent is not

relevant to determining what a phrase enacted in 1983

means. This is not a case, however, in which a subsequent

legislature merely expressed its opinion about the meaning

of a previously enacted statute. Cf. DeFazio v. WPPSS, 296

Or 550, 561, 679 P2d 1316 (1984) (explaining that “[t]he

views legislators have of existing law may shed light on a

new enactment, but it is of no weight in interpreting a law

enacted by their predecessors”).22 Nor is it a case in which

legislative inaction is invoked to determine the meaning

of an earlier statute. Cf. Holcomb v. Sunderland, 321 Or

99, 105, 894 P2d 457 (1995) (explaining that subsequent

legislative inaction did not provide a basis for determining

an earlier legislature’s intent). Rather, this is a case is which

the 1991 amendment added a defense to the crime of second-

degree sexual abuse that, as a matter of the statute’s text

and legislative history, rests on the proposition that “does

not consent” in ORS 163.425 includes instances “in which

the victim’s lack of consent was due solely to incapacity to

consent by reason of being less than a specified age[.]” Or

Laws 1991, ch 830, § 4. Cf. Fifth Avenue Corp. v. Washington

Co., 282 Or 591, 597-98, 581 P2d 50 (1978) (recognizing that

amendments that materially change the terms of an earlier

statute change the meaning of that statute to the extent

that change “is expressly declared or necessarily implied”).

This court considered a similar issue in State v.

Swanson, 351 Or 286, 266 P3d 45 (2011). The question in

Swanson was whether the definition of the term “crime,”

which the 1971 legislature enacted as part of a comprehensive

revision of the substantive criminal code, changed the

meaning of an earlier procedural statute that governed a

jury’s consideration of lesser-included “crimes.”23 In deciding

that issue, this court assumed that, as initially used in the

procedural statute, the term “crime” was broader than the

22

Because the later legislation in DeFazio did not necessarily change the

earlier legislation, the court regarded the later legislation as a later legislature’s

expression of an opinion about an earlier statute. See 296 Or at 561.

23

The legislature had enacted the procedural statute as part of the Deady

Code, more than 100 years before the enactment of the 1971 revision of the

substantive criminal code. Swanson, 351 Or at 290-91.

530 State v. Ofodrinwa

definition enacted as part of the 1971 substantive criminal

code. Id. at 292. The court concluded, however, that the

1971 definition effectively narrowed the term “crime” in the

earlier enacted procedural statute. Id. at 295-96. That was

so even though the legislature had not specifically modified

the procedural statute governing the jury’s consideration

of lesser-included crimes. Id. The court reasoned, from the

context of the legislature’s discussions in amending the

procedural code in 1973, that it had intended generally that

references to “crime” in the procedural statutes would refer

to the 1971 definition of that term. Id.

The effect of the 1991 amendment on the meaning

of the phrase “does not consent” in the 1983 amendment is

more direct than the effect of the 1971 definition of crime

was on the earlier enacted procedural statute in Swanson.

In this case, the 1991 legislature both reclassified the crime

of second-degree sexual abuse and, in the same bill, added a

defense to that crime that rests on the proposition that the

phrase “does not consent” refers to the lack of capacity to

consent due to age, as well as to the lack of actual consent.

Even if the 1983 legislature had a narrower understanding

of the phrase “does not consent,” the defense that the 1991

legislature specifically provided to ORS 163.425 informs the

meaning of the elements of that offense. See Wetherell, 342

Or at 678 (explaining that the various parts of a statute

should be construed together). The 1991 amendment is the

legislature’s last word on the subject and, as such, controls

the meaning of the phrase “does not consent” in ORS 163.425.

Defendant suggests, alternatively, that the 1991

legislature may have enacted the defense because it was

uncertain whether ORS 163.425 applied to victims who

lacked the capacity to consent due to their age. Defendant

does not point to anything in the text of the 1991 amendment

or its legislative history to support that proposition, nor

does any exist. Indeed, the only legislative history that

bears on the issue shows that the 1991 legislature enacted

the defense to ORS 163.425 because it understood that, for

persons within a specified age range, the defense made legal

what would otherwise have been illegal due to the victim’s

age.

Cite as 353 Or 507 (2013) 531

Defendant argues finally that “interpreting

ORS 163.425 to permit prosecutions based on [a] victim’s

incapacity to consent *  * would create conflict among the

*

different provisions of ORS 163.345 [the statute providing

for age-related defenses to various sexual offenses].” In

support of that argument, defendant identifies three

“conflicts” resulting from adopting the state’s interpretation

of the phrase “does not consent.” He notes initially that ORS

163.345 does not provide an age-related defense to first-

degree rape when the victim is under 12 years old. He reasons

that, if the state’s interpretation of “does not consent” is

correct, then a defendant who engages in sexual intercourse

with an 11-year-old victim would have a defense to a charge

of second-degree sexual abuse but not to a charge of first-

degree rape. That apparent anomaly, defendant contends,

supports his conclusion that the phrase “does not consent”

in ORS 163.425 refers only to the lack of actual consent.

Defendant’s argument rests on a misperception of

the legislature’s classification system for sexual offenses.

The age-related defense in ORS 163.345 also applies to

second- and third-degree rape, which prohibit respectively

sexual intercourse with victims “under” the age of 14 and

16. See ORS 163.345 (defense); ORS 163.365 (second-degree

rape); ORS 163.355 (third-degree rape). The defense in

ORS 163.345 will shield a defendant who engages in sexual

intercourse with an 11-year-old victim from a charge of

second-degree rape or third-degree rape but not from a

charge of first-degree rape.24 Not only does the “conflict”

that defendant perceives apply equally to second- and

third-degree rape, which explicitly turn on the victim’s lack

of capacity to consent due to age, but the answer to that

perceived conflict lies in the prosecutor’s charging discretion.

If a person engages in sexual intercourse with a person

under the age of 12, then the prosecutor can charge that

crime as first-degree rape. Not only does that charge avoid

24

When using age as the basis for classifying degrees of sexual offenses, the

legislature has provided that persons “under” a specified age lack the capacity to

consent—“under 14 years of age,” for example, in second-degree rape, or “under

16 years of age” in third-degree rape. See ORS 163.365 (second-degree rape); ORS

163.355 (third-degree rape). As a result of that drafting technique, the same act—

intercourse with an 11-year-old child—can be charged as first-degree rape, second-

degree rape, third-degree rape, and second-degree sexual abuse.

532 State v. Ofodrinwa

a possible age-related defense, but it is also consistent with

the legislature’s classification scheme for sexual offenses,

which uses the victim’s age to distinguish among degrees of

a crime.

In our view, interpreting the phrase “does not

consent” in the second-degree sexual abuse statute to

include the lack of capacity to consent due to the victim’s

age does not result in a conflict with other sexual offenses,

as defendant argues. Rather, it aligns the crime of second-

degree sexual abuse with other sexual offenses that the

legislature has classified according to the victim’s age.25

Defendant’s arguments provide no persuasive reason for

saying that the 1991 amendment does not control our

resolution of this case. We accordingly conclude that the

phrase “does not consent” in ORS 163.425 refers to the

victim’s lack of capacity to consent due to age, as well as to

the lack of actual consent.

The decision of the Court of Appeals and the

judgment of the circuit court are affirmed.

25

We have considered the other two conflicts that defendant has identified

and find that they are not persuasive for some of the same reasons that we have

discussed above.