State v. Lockhart

                                      89

  Submitted March 10, 2020, resubmitted en banc June 9, 2021; affirmed by
  an equally divided court (ORS 2.570(5)) April 13; petition for review denied
                       September 16, 2022 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                     DNAY A. LOCKHART,
                      Defendant-Appellant.
                 Hood River County Circuit Court
                    16CR05520, 17CR25167;
                   A167926 (Control), A167927
                                  

    Defendant was found guilty of, among other things, first-degree sodomy,
ORS 163.405, and first-degree sexual abuse, ORS 163.427. On appeal, defendant
argues that the evidence was legally insufficient to permit the jury to find that
the victim was subject to forcible compulsion, an element of both offenses, and
that the court therefore should have granted a motion for judgment of acquittal on the charges. Held: The Court of Appeals, sitting en banc, affirmed by an
equally divided court, with concurring opinions by DeVore, S. J., and Mooney, J.,
and dissenting opinions by James, J., and Lagesen, C. J.
    Affirmed by an equally divided court. ORS 2.570(5).



    En Banc
    Karen Ostrye, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, C. J., and Ortega, Egan, Tookey, Shorr,
James, Aoyagi, Powers, Mooney, Kamins, JJ., DeVore, S. J.,
and DeHoog, J. pro tempore.
    PER CURIAM
    Affirmed by an equally divided court. ORS 2.570(5).
90                                        State v. Lockhart

  DeVore, S. J., filed a concurrence in which Tookey, Shorr,
and Powers, JJ., and DeHoog, J. pro tempore., joined.
   Mooney, J., filed a concurrence in which DeVore, S. J.,
joined.
  James, J., filed a dissent in which Ortega, Egan, Aoyagi,
and Kamins, JJ., joined.
  Lagesen, C. J., filed a dissent in which Ortega and
Kamins, JJ., joined.
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        DeVORE, S. J., concurring.
         Defendant appeals from the judgment of conviction
on Count 1, first-degree sodomy, ORS 163.405, and Count 2,
first-degree sexual abuse, ORS 163.427, but does not challenge the convictions on Count 3, third-degree sexual abuse,
ORS 163.415, and Count 4, contributing to the sexual delinquency of a minor, ORS 163.425. Defendant argues that the
evidence was insufficient to permit the jury to find an act
of forcible compulsion that is necessary for the first-degree
offenses of Counts 1 and 2. Together with colleagues who
join this opinion, I conclude that the trial court did not err
in denying defendant’s motions for judgment of acquittal on
Counts 1 and 2.
          An appellate court is required to “view the evidence
in the light most favorable to the state to determine whether
a rational trier of fact, making reasonable inferences, could
have found the essential elements of the crime proved
beyond a reasonable doubt.” State v. Hall, 

,

 (1998). The court accepts all “reasonable inferences and reasonable credibility choices” that the jury could
have made. State v. Walters, 

, 

,
cert den, 

 (1991). Those standards dictate how,
after a verdict, this court regards two differing versions of
the facts.
                           FACTS
          Before trial began, the trial court directed the parties, as a matter of respect and dignity, to refer to defendant
as Ms. Lockhart, by full name, or simply as defendant. In
opening statement, defense counsel advised the jury that
defendant is transgender, explaining, “She was born male,
but she identifies as female.” When introducing a defense of
consensual contact without force, defense counsel said, “She
presents very feminine.”
        On April 22, 2015, K, the complaining witness, was
16 years old and a few days short of his next birthday. He was
between five feet one and five feet two inches tall, weighing
between 120-130 pounds. Because he was home-schooled, he
spent Wednesdays at the city library for internet access on
his computer for online classes. At that time, defendant was
92                                                      State v. Lockhart

28 years old, five feet eight inches tall and weighed about
150 pounds. At trial, K agreed that defendant was bigger
and weighed more, but he did not know that defendant was
11 to 12 years older.
         K testified that he met defendant in the children’s
section of the library. Defendant testified that, being “taken”
with K’s red hair and piercings, defendant “struck up” a
conversation with K. K recalled that they talked about the
piercings, skateboarding, and school. K testified that he
thought defendant was very attractive and that defendant
was “female” due to “long hair” and “body shape.” K testified
that they were flirting. K testified that defendant did not
say anything about defendant being gay or transgender.1
         K testified that, after talking, variously estimated
at 10 or 30 minutes, defendant asked K to follow defendant.
K testified that he followed but did not know where they
were going. K thought it was “really weird” but followed
defendant into the men’s restroom. K testified that he did
not know what was going to happen and that he was “just
curious.” K testified that he was attracted to defendant and
that he wanted to kiss defendant. K testified that he followed because defendant asked. He testified that he did not
feel coerced, and he repeated that he thought defendant was
female.
         Defendant and K went into the larger, handicapped
stall. K testified that defendant grabbed the door and shut
it. Defendant testified that she “locked” the hasp on the
door. On cross-examination, K agreed that he could have
walked out at any time, but K also testified that defendant
was blocking the door to get out—because defendant was
standing in front of the door.
         K testified that, after defendant closed the door,
defendant “pushed [K] down.” On direct examination, K
testified:
        “Q. Okay. When you say [defendant] pushed you down,
     how—describe exactly how that happened for the jury.

    1
      K testified that defendant said something about “new world order,” but that
K did not know what that meant. Defendant testified she mentioned being a “new
age woman,” a term she uses to “explain transgenders for men.”
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     “A. Pushed me down on the shoulders, pushed me onto
  the ground on my knees.
     “Q. Onto your knees?
     “A. Yes.
     “Q. And the defendant was standing?
     “A. Yeah.
     “…
     “Q. Was the defendant clothed or unclothed?
     “A. No pants on.
     “Q. Okay. And when the defendant took the defendant’s pants off, what did you see?
     “A. I saw a penis.
     “Q. And what did the defendant do when you were
  pushed down on your knees?
     “A.   He made me give him oral sex.
     “Q. Where did the penis—where did the defendant’s
  penis go?
     “A. In my mouth.
     “…
     “Q. Is this something you wanted to do?
     “A. No.
     “Q. … [W]hy did you not just leave the stall?
     “A. I (indiscernible)—I froze.
     “…
     “Q. Okay. And do you recall if the defendant ejaculated?
     “A. Yes.”
(Emphases added.) On cross-examination, K testified consistently, with some added detail:
     “Q. Okay. Shut it [stall door]. And then what happened?
     “A. [Defendant] pushed me down on my knees.
     “Q. I’m sorry.
94                                             State v. Lockhart

        “A. [Defendant] pushed me down from my shoulder
     and put me on my knees.
        “Q. Now, when you say pushed you down on your shoulder, one hand or two hands?
        “A.    One hand.
        “Q. Which shoulder?
        “A. I think it was my right one.
        “Q. Right shoulder?
        “A. Yeah.
        “Q. Where on the ground?
        “A. All the way to the ground onto my knees.
       “Q. Pushing you down onto your knees? Okay. Then
     what happened?
        “A. [Defendant] took [defendant’s] pants off.
        “…
        “Q. How was she able to take her pants off while she’s
     holding you down?
        “A. With her other hand, (indiscernible) her pants.
        “…
        “Q. At this point did you know she was female—male,
     I mean?
        “A. No.
        “Q. So at this point you’re still voluntarily doing this
     otherwise?
        “A. No, I didn’t know what to do.
        “…
        “A. They were sweatpants, (indiscernible).
       “Q. And at this point though, until you see her actual
     male genitalia, you did not know she was male, right?
        “A. Yes.
        “Q. Okay. So up to the point where you understood
     that she was female, were you [ ] a willing participant in
     this?
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     “A. When I was pushed down, I wasn’t.
     “Q. But what—did you resist in any way?
     “A. I froze.
     “Q. And you were pushed down to your knees.
     “A. Yes.
     “Q. And then she presented to you as a male, male
  genitalia; is that correct?
     “A. Yes
     “Q. Erect?
     “A. Yeah.”
(Emphases added.) On cross-examination, K was questioned
closely about his response. K testified:
     “Q. So you—why didn’t you get up?
     “A. Froze.
     “Q. What happened then?
     “A. Didn’t know what to do.
     “Q. What happened then?
     “A. [Defendant] put [defendant’s] penis in my mouth.
     “Q. How did she put her penis in your mouth? Was
  your mouth open or was it shut?
     “A. It was shut.
     “Q. So how did she force her penis into your mouth?
     “A. I didn’t know what to do.
     “Q. How did she force her penis into your mouth?
     “A. I’m telling you I didn’t know what to do, and—
     “Q. How did she force her penis into your mouth?
     “A. My mouth opened.
      “Q. Did you not have the ability to keep your mouth
  closed at that point?
     “A. It [sic] did but not mentally.
     “Q. Physically though?
96                                                       State v. Lockhart

        “A. I couldn’t bring myself to do anything.
        “Q. So what did you do?
        “A. I let [defendant] do it.”
(Emphases added.) K testified that oral sex lasted about two
minutes. When asked how the encounter ended, K testified
“as fast as possible.” He testified that he had no further conversation with defendant and that he did not kiss defendant.
         Defendant testified to a consensual encounter. On
direct examination, defendant testified that, upon entering the stall, there was touching and fondling. Defendant
testified that defendant pulled defendant’s pants down and
she put her hand up to K’s face “in a very endearing sort
of way.” Defendant testified, “I was like, ‘Come on,’ and [K]
did his thing.” Asked how long K performed oral sex, defendant described it as a “15 or 20-minute journey.” Defendant
testified that, as someone entered the restroom, defendant
and K left, giggling; that they both went to a library meeting room to talk for about 10 minutes; that defendant was
exhilarated, saying “this was my journey of freedom with
my spirit,” and “that was fun.” Defendant testified that they
hugged before K left.
         The jury was instructed on the four charges alleged,
which included first degree sodomy, involving subjecting
another to forcible compulsion and oral sexual intercourse,
and first-degree sexual abuse, involving forcible compulsion
and sexual contact. The instructions included the statutory
definition of forcible compulsion.2 The jury found defendant
guilty on all four counts.
                                     LAW
         Like the jury, I must begin with a description of
the offenses at issue. A person commits first-degree sodomy when, among other things, a person “engages in oral
… sexual intercourse with another person” and “[t]he victim is subjected to forcible compulsion by the actor.” ORS

    2
      The jury was also instructed that a person is not capable of consenting to
a sexual act if that person is under 18 years of age; and that a lack of verbal or
physical resistance does not, by itself, constitute consent but may be considered
along with all other relevant evidence.
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163.405(1)(a).3 A person commits first-degree sexual abuse
when, among other things, a person “[s]ubjects another person to sexual contact” and “[t]he victim is subjected to forcible compulsion by the actor.” ORS 163.427(1)(a)(B).4 Oregon
statute explains that “ ‘[s]exual contact’ means any touching
of the sexual or other intimate parts of a person or causing
such person to touch the sexual or other intimate parts of
the actor for the purpose of arousing or gratifying the sexual
desire of either party.” ORS 163.305(5). As applicable here,
“ ‘[f]orcible compulsion’ means to compel by … [p]hysical
force.” ORS 163.305(1)(a). Until 1999, forcible compulsion
had been defined to be “[p]hysical force that overcomes earnest resistance.” ORS 163.305(1)(a) (1997) (emphasis added).
The language requiring evidence of “overcoming earnest
resistance” was repealed. Or Laws 1999, ch 949, § 1. This
court explained, “The ‘earnest resistance’ requirement was
removed due to its deleterious effects on victims of sexual
assault.” State v. Beckner, 

, 752 n 6, 

, rev den, 

 (2020).

         Today, our understanding of those statutory terms
is provided by State v. Marshall, 

, 

(2011). That case involved a defendant’s challenge to the
denial of his motion for judgment of acquittal on two charges
of first-degree sexual abuse. The defendant was a family
friend, age 27, and the victim was age 14. Marshall, 

. One morning, the victim awakened to find the defendant partially on top of her. The defendant “grabbed” the

    3
      In relevant part, ORS 163.405 currently provides:
        “(1) A person who engages in oral or anal sexual intercourse with another
    person or causes another to engage in oral or anal sexual intercourse commits the crime of sodomy in the first degree if:
        “(a) The victim is subjected to forcible compulsion by the actor[.]”
In 2017, ORS 163.405 was amended, Or Laws 2017, ch 318, § 5, but, because the
amendment does not affect the analysis, reference here is to the current statute.
See Or Laws 2021, ch 82, § 5.
    4
      In relevant part, ORS 163.427 provides:
        “(1) A person commits the crime of sexual abuse in the first degree when
    that person:
        “(a) Subjects another person to sexual contact and:
        “…
        “(B) The victim is subjected to forcible compulsion by the actor[.]”
98                                               State v. Lockhart

victim’s hand and “forced” her hand down the front of his
pants, placing it on his penis. Id. After she turned away,
defendant slipped his hand down the back of her sweatpants
and put his hand on her buttocks. Those acts presented two
legal issues on appeal. The first issue was whether “forcible
compulsion” must in some sense cause or result in the sexual
contact, and the second issue was whether “ ‘forcible compulsion’ contemplates a particular level of physical force.” Id. at
216.
         As to the first issue, the defendant argued that
the forcible compulsion must “result in” the sexual contact,
while the state argued that the elements need not be related.
Id. at 217. Agreeing with the defense, the court determined
that the offense necessitates a causal relationship between
the forcible compulsion and the sexual contact. Id. The court
explained its interpretation of the statute:
     “That interpretation also finds support in the distinction
     between the nonconsensual ‘sexual contact’ that is punishable as third-degree sexual abuse and nonconsensual
     sexual contact that is the result of ‘physical force,’ and,
     therefore, is punishable as first-degree sexual abuse. The
     elevation of the nonconsensual sexual contact from a misdemeanor to a felony makes sense only if there is a causal
     connection between the additional element of ‘forcible compulsion’ and the submission to or engagement in the sexual
     contact (or, stated differently, if the submission or engagement was ‘compelled by’ or resulted from ‘physical force’).”
Id. at 218. The court illustrated what it meant by conduct
that is unrelated to the sexual contact charged. The court
continued:
     “Thus, if a defendant compelled a victim by physical force
     to sit in a chair, but that conduct was unrelated to any
     (nonconsensual) sexual contact to which the defendant subjected the victim, the defendant would be guilty of third,
     rather than first, degree sexual abuse.”
Id. The court rejected the state’s argument that unrelated
force might suffice as that version of “forcible compulsion”
that is “physical force” under ORS 163.305(1)(a). Id. at 219.
In other words, an unrelated act of force is immaterial, but
a related act, such as putting a victim in a sexually compromising position, is forcible compulsion.
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         On the second issue, the defendant argued that a
measure of force was required for “forcible compulsion” and
that the measure of force should require something like a
violent or dominating physical force. 

. The
court acknowledged the defendant’s point that force should
not mean the minimum force that is “inherent in the nonconsensual sexual contact (touching of the victim or causing
the victim to touch the actor).” 

. To find “forcible
compulsion,” the court drew a distinction between the minimal contact of the offense itself and some added force or
additional act. The court concluded:
   “[W]hen the ‘forcible compulsion’ element of the latter statute is proved by evidence of physical force, the level of force
   that is involved must be greater than or qualitatively different from the simple movement and contact that is inherent in the action of touching an intimate part of another.
   But we do not accept defendant’s further leap that ‘forcible
   compulsion’ therefore must involve a violent, dominating
   level of force. We have no reason to believe that the legislature viewed physical force in this context as a binary system, offering only a choice between the minimum physical
   movement and contact inherent in any nonconsensual sexual touching and violent or dominating physical coercion.”

 (emphasis in original) Thus, an act with some force in
whatever measure, other than that the actual sexual contact itself, satisfies the element of forcible compulsion. The
court determined:
   “A defendant’s conduct can only constitute first-degree sexual abuse when the defendant uses physical force that is
   greater in degree or different in kind from the simple movement and contact inherent in the act of touching.”

 (emphasis added). In essence, because the amount
of force employed need only be “greater in degree or different
in kind” than the offense, forcible compulsion may be found
in some related act, other than the contact that comprises
the offense itself. 

. No “particular level of physical
force” is necessary for forcible compulsion. 

.
        The court went on to observe that there were two
types of physical force related to sexual contact. One type
100                                         State v. Lockhart

involved a defendant touching a victim’s intimate parts;
another type involved a defendant causing a victim to touch
the defendant’s intimate parts. 

. As to the latter type, the court observed that “there likely is a narrower
range of conduct” in which causing the victim to touch the
defendant would not be sufficient to have “compelled” the
victim to engage in sexual contact by forcible compulsion.

. Plainly stated, forcing a victim to make sexual
contact is likely to be forcible compulsion. 

          Finally, the court addressed the “compulsion” aspect
of forcible compulsion. The court added that the issue of
force sufficient to “compel” conduct may involve consideration of circumstances known to the defendant such as the
victim’s age, differences in age, size, strength, the relationship of the parties, and “similar facts.” 

 Presumably, the
relationship of the parties or “similar facts” means consideration of trust, exploitation, or lowering defenses that relate
to the amount of physical force necessary to be compelling.
See 

 (reviewing the defendant’s relationship with
family as to force sufficient to cause youth to engage in
sexual contact); see also State v. O’Hara, 

, 

 (2012), rev den, 

 (2013)
(defendant—with an uncle-like role in family—employed
forcible compulsion when he persuaded 14-year old victim to
raise her arm to help remove her shirt because she did not
know what to do; he pushed her onto bed, held her arm, and
raped her).

         The court’s application of those standards is illustrative. The first of the two acts becomes a parallel to the
case at hand. The court had “little trouble” concluding that
the physical force used to cause the victim’s hand to touch
defendant’s penis was different in degree or kind from the
simple movement or contact in the act of touching his penis.
Marshall, 

. Further, the age difference
between the defendant and victim, as well as the friendly,
family-circumstances, related to the physical force used and
the court’s acknowledgement of forcible compulsion. 

. Together, that evidence sufficed to support that charge.

 By contrast, the court concluded that, as to the other
charged act, there was no evidence of physical force, other
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than the touching of the victim’s buttocks itself. No evidence
sufficed to support the latter charge. 

.
         Recently, this court followed the Marshall standards
in State v. Nygaard, 

, 

, rev den,

 (2020). The defendant was convicted of crimes
that included first-degree sexual penetration and attempted
first-degree rape. Id. at 795. Both crimes required “forcible
compulsion.” Id. The victim used a wheelchair and had no
ability to move her legs. Id. One night, the defendant entered
the victim’s bedroom and refused her demand that he leave.
Id. at 795-96. The defendant got onto her bed and after other
conduct, pulled down her diaper, grabbed her breast, moved
her legs, and inserted a finger into her vagina. Id. at 796. At
trial, the defendant moved for acquittal arguing that there
was no evidence that he had used any physical force beyond
the touching that occurred. Id.
         On appeal, the defendant repeated the argument
that his act of moving the victim’s legs was inherent in the
conduct because somebody would have to move her legs to
engage in vaginal sex even if she consented to the conduct.
Id. at 797-98. This court determined, however, that the force
was not inherent in that conduct. Id. at 798 (agreeing with
state). This court recalled Marshall, stating, “[T]here must
be a causal connection between the ‘sexual contact’ and ‘forcible compulsion’ elements,” but “the force need not be violent
or dominating.” Id. (quoting Marshall, 

)). We
did not treat the positioning movement of the victim’s legs as
an inherent part of the charged offenses. Instead, we stated:
       “Here, defendant engaged in criminal sexual contact
   when he penetrated the victim’s vagina and when he
   attempted to rape her. Defendant’s act of forcibly moving
   the victim’s legs to make that sexual contact possible might
   have been a necessary predicate to the contact, given the
   circumstances, but it was not inherent ‘in the action of
   touching an intimate part of another’—here, the victim’s
   vagina[.]”
Id. at 799. This court concluded that, like the defendant
in Marshall who moved the victim’s hand, the defendant
“manipulated the victim’s legs so he could contact her
vagina.” Id. at 800. What mattered was that defendant used
102                                         State v. Lockhart

physical force to move her legs. Id. This court held that the
trial court did not err in denying the defendant’s motions on
the two charges. Id.
         In this case, as a preliminary matter, this court
could consider the circumstances that relate to forcible
compulsion—those involving the “relationship between the
victim and the defendant; and similar facts.” Marshall 

 (emphasis added). Defendant was 11 or 12 years
older, six inches taller, and 20 to 30 pounds heavier than K.
Although they were strangers, were not members of a family, and had no relationship of trust, K could be found to
have been young and vulnerable. Defendant initiated contact with a minor who was unaccompanied. K was an adolescent who found defendant attractive. The two flirted.
Whether those circumstances influenced K to follow defendant so as to reduce the physical force necessary to force
him into a compromising position, I need not and do not
consider, because the predicate act in the bathroom alone
sufficed to provide evidence of a causally related act “greater
in degree or different in kind” from the “contact inherent”
in the offense itself. See Marshall, 

 (forcible
compulsion).
         Defendant invited K to follow defendant into the
men’s restroom. Once there, defendant closed the stall door,
fastened the hasp, and stood blocking the stall door. Even
then, K did not know what to expect. Because K testified
that he thought defendant was female and that he was
interested in kissing defendant, a jury could reasonably
infer that K was standing in a normal posture, not planning
to move voluntarily into a position in which to engage in
oral sodomy with a standing person. When the prosecutor
asked K to describe to the jury “exactly” what happened,
K testified that defendant put a hand on his shoulder and
pushed him onto the ground on his knees. K did not describe
the gesture of a friendly hand on his shoulder, waiting for
him to move voluntarily. Instead, K testified that defendant “pushed me down from my shoulder and put me on my
knees.” (Emphasis added.) K specified, “All the way to the
ground onto my knees.” K testified that he was not a willing participant when “pushed down.” When defense counsel
asked what defendant did while “holding” K down, K answered
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that defendant dropped defendant’s sweatpants, revealing
an erection. K’s mouth was “shut,” but defendant “put” defendant’s penis in K’s mouth.

          K’s testimony about being “pushed” into a position
in which defendant could engage in oral sodomy is direct
evidence of physical force. Jurors are often instructed that
there are two types of evidence, and “[o]ne is direct evidence—such as the testimony of an eyewitness.” UCrJI 1025;
see State v. Allen, 

, 

 (2021)
(determining UCrJI 1025 applicable to facts). Because it was
eyewitness testimony, K’s testimony was direct evidence.
See, e.g., State v. Walsh, 

, 338-39, 

 (2017), rev den, 

 (2019) (eyewitness identification is direct evidence); State v. Inman, 

, 

 (2015), rev den, 

 (2016) (the
victim’s testimony was not the sole direct evidence); State v.
Draves, 

, 

, rev den (1974)
(eyewitnesses’ testimony was direct evidence). K’s testimony
about being bodily pushed onto his knees was not a matter
of inference or speculation about physical force.

         The jury could find that K’s testimony was an exact
description of an event that he experienced when receiving
a “push” to the ground on his knees. As a verb in common
English usage, to “push” is understood to mean “to exert
physical force upon so as to cause or tend to cause motion
away from the force.” Webster’s Third New Int’l Dictionary
1848 (2002) (emphasis added). Its synonyms are “shove,
thrust, and propel.” 

 K’s testimony described how much
force was exerted; it was an exertion of physical force, in this
case, sufficient to move his body and “put him” on his knees.
K’s testimony did not describe a friendly hand placed on
his shoulder coaxing him to kneel. When asked to describe
“exactly” what happened, K testified he was “pushed.”

         Within the terms of Marshall, that evidence of physical force is “greater in degree or different in kind” from
“the act of touching” that is sodomy or sexual abuse itself.
See Marshall, 

 (employing terms). The push
appears as or approximates the forcible compulsion of the
second sort in Marshall—force used to move a victim into
104                                         State v. Lockhart

sexual contact with a defendant’s genitals. 

 As such, it is
the sort of force that Marshall indicates is unlikely to ever
be found not to be forcible compulsion. 

         Defendant’s act of pushing K into position is like
the defendant’s act in Nygaard of moving apart that victim’s
paralyzed legs in order to accomplish sexual penetration.
None of those acts involve more physical force than was necessary to move a victim’s arm and hand or a victim’s legs.
Those cases did not impose on the state a burden to offer evidence of how hard a defendant pushed a hand into position
or a leg out of the way. That is because Marshall rejected
the idea that violence or domineering force was necessary.
That is to say, there is no “particular level of physical force”
necessary—other than force “that is greater in degree or
different in kind” than the sexual act itself. Marshall, 

.
                       CONCLUSION
         In this case, there was direct evidence from which
a jury could find that defendant bodily forced K to his knees
before engaging in sodomy and sexual abuse. For that reason, I conclude that the trial court did not err in denying
defendant’s motion for judgment of acquittal on the sodomy
and sexual abuse charges.
       Tookey, J., Shorr, J., Powers., and DeHoog, J. pro
tempore, join in this concurrence.
        MOONEY, J., concurring.
         A jury convicted defendant of various sex crimes
committed in a bathroom stall at the Hood River Public
Library. The victim, K, was a 16-year-old boy, who was interested in sexual contact with defendant when he thought that
defendant was a cisgender woman. Defendant is a transgender woman. K first learned that defendant had a penis when
defendant, who was positioned between K and the only door
out of the handicapped stall, pushed K to the ground and lowered her sweatpants. K changed his mind when he saw the
penis, but he froze, and defendant proceeded to assault him.
        Like every case we see, this one comes with its own
unique set of facts and circumstances. Some of those facts
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and circumstances prompt us to think about bias and fairness issues. The dissenting opinion expresses concern that
the state improperly relies on “defendant’s transgender identity [a]s part of the totality of circumstances that could render a push on a shoulder forcible compulsion.” 319 Or App
at 115 (James, J., dissenting). I do not understand the state
to have made that argument. There are a number of circumstances that might trigger biases and inject unfairness
into the proceeding. For example, defendant is transgender
and African American. K is a male teenager who reportedly
may have had homosexual feelings about a friend at some
point. Those personal factors raise the possibility of competing biases. Co-occurring or competing biases, in turn,
present the risk of overcorrecting for one bias to the exclusion of others. That risk of overcorrection is due, at least in
part, to judgments about the relative importance of those
biases—judgments that are also driven by personal biases.
I voted to affirm because when the circumstances about
gender, gender identity, race, and sexual orientation are
set aside, it is clear that the jury’s verdict is supported by
the evidence of what happened that day in the Hood River
library.

         The only question this court was asked to answer is
whether the trial court erred in denying defendant’s motion
for judgment of acquittal (MJOA). The trial court may not
grant an MJOA if the state’s evidence would support a verdict against the defendant. ORS 136.445. Where, as here,
the court denied the MJOA, we view the evidence on appeal
in the light most favorable to the state, and if it is sufficient
to support a verdict against defendant, then our job is to
affirm. State v. Hall, 

, 

 (1998).

         The question is whether defendant compelled K,
by physical force, to engage in sexual contact against K’s
wishes. We are required to consider the circumstances of,
and surrounding, the alleged predicate act because “the
force that is sufficient to ‘compel’ one person to submit to
or engage in a sexual contact against his or her will may
be different from that which is sufficient to compel another
person to do so.” State v. Marshall, 

, 

 (2011). Judge DeVore’s opinion considers the
106                                        State v. Lockhart

circumstances presented by this case but concludes that
the “the predicate act”—pushing K into position for oral
sex—was itself sufficient evidence of physical force. 319
Or App at 102 (DeVore, S. J., concurring). Judge James’s
opinion also considers the circumstances but reaches the
opposite conclusion—that there was insufficient evidence
of physical force. 319 Or App at 113-14 (James, J., dissenting). For me, the push, in isolation, was just a push. But the
push, considered in context, supplied evidence of physical
force that is sufficient to support, beyond reasonable doubt,
that defendant forcibly compelled unwanted sexual contact
with K.
         The force of the push itself was not described in
mathematical terms. And it was not characterized more subtly with words such as “firm” or “light.” We know from K’s
testimony, however, that defendant pushed him “all the way
to the ground,” and that K described what happened as having been “raped” by defendant. That description supports a
reasonable inference that the push was not the gentle, guiding hand of a would-be lover. And even if a force gauge had
been present and employed, its measure of compression and
tension would not have answered the question of whether
the push was legally sufficient evidence of forcible compulsion as between defendant and K without reference to the
surrounding circumstances.
         Moving then to those surrounding circumstances,
there is disagreement about whether there was a power
imbalance between defendant and K. But, again, what matters is what the record supports. And, in my view, a rational
jury could reasonably have inferred that there was a power
imbalance from the 12-year gap between defendant’s age
and K’s age, with the associated differences in intellectual,
emotional, and social development; the six-inch difference
in their height; and the 20-to-30-pound difference in their
weight. And because the presence or absence of a power
imbalance may provide insight into the level of force needed
to compel sexual contact with K, it matters.
        The notion that there was no power imbalance
because defendant and K were “stranger[s]” to each other dismisses too summarily the very nature of the brief encounter.
Cite as 

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Id. at 114 (James, J., dissenting). The idea that defendant
did not benefit from a power imbalance because the relationship was not long-term and did not involve a trusted family
friend ignores the fact that some short-term relationships
are as powerful in the moment as those that develop over
time. The assertion that defendant did not “exploit[ ] a relationship of trust” could most certainly be debated by reasonable jurors. Id. (James, J., dissenting). Defendant told K
that she was a “new age woman.” It may be that defendant
intended the phrase “new age woman” to mean transgender
woman, but she did not use the word transgender in her
conversation with K, who believed that defendant was a cisgender woman. A jury drawing on its collective experience
and knowledge might reasonably conclude that there is an
expectation of honesty with respect to basic sexual anatomy
in any relationship where sexual contact appears imminent.
A reasonable jury might conclude that defendant exploited
K’s trust, in a way that had some bearing on the ease with
which defendant was able to lead K out of the public section
of the library, away from people, past the security camera
and into the bathroom stall which, in turn, impacted how
much force defendant would then need to employ to carry
out the assault.
          It does not further the discussion about force to say
that K was not required to “say no” but to then conclude
that there was no force because “the absence of communication” from K to defendant amounts to the absence of “objectively observable facts or circumstance[s],” and, thus, a failure of proof. Id. at 115 (James, J., dissenting). Defendant
pushed K to his knees, revealing an erect penis, and in that
moment, K froze, as victims of sexual assault sometimes do.
It is difficult to imagine that defendant did not pick up on
that reaction. A jury might reasonably have inferred that
K froze in response to the rapidly unfolding assault and,
further, that his reaction was evidence of both the measure of the force used and the sufficiency of that force to
compel sexual contact. I am not aware of any legal authority that supports the use of an assault victim’s inability to
speak or resist—because he or she reacted to the assault by
freezing—as evidence that force was not used to carry out
the assault.
108                                        State v. Lockhart

        The amount of force necessary to overcome a sexual
assault victim’s will is “highly context dependent.” State v.
Beckner, 

, 

, rev den, 

 (2020). We called Beckner “a difficult case,” and we
reversed the conviction there for first degree sexual abuse
because we concluded that “the evidence was insufficient
to establish forcible compulsion by physical force based on
defendant’s grabbing of the victim’s hips.” Id. at 753. But
this is not Beckner. This case is complicated, but that is
because the evidence might have persuaded rational jurors
to reach different conclusions. The jury concluded that the
state proved that defendant committed first-degree sodomy
and first-degree sexual abuse beyond reasonable doubt.
Because the evidence supports that conclusion, it is our
job to affirm—even if we might have reached a different
conclusion.

         Defendant’s status as a transgender woman was
brought to the jury’s attention by defendant’s lawyer in
opening statement. It was mentioned a number of times at
trial and on appeal. But defendant’s transgender status is
no more relevant to the question before us than the race,
gender, or sexual orientation of defendant or of K. It frankly
does not matter whether the penis that was presented to K
as he was pushed to the ground belonged to a transgender
woman or to a cisgender man. What matters is that K froze
when defendant pushed him to the ground and revealed a
penis. And K’s reaction was a factor for the jury to consider
in assessing the amount of force defendant needed to employ
at that point. Perhaps this would be an easier case if the
state had called a qualified expert to testify about the neurodynamics of freezing in response to sexual assault, but it
didn’t, and I do not think it was required to do so.

          The jury concluded that the force defendant used
when she pushed K to his knees—while standing over him
as she positioned herself between K and the only way out of
that bathroom stall—was enough force to cause K to engage
in sexual contact against his will, and the evidence was sufficient to support that. That is why I voted to affirm.

        DeVore, J. joins in this concurrence.
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        JAMES, J., dissenting.
         In this case, we are unable to coalesce around a
rationale for disposition; the ruling of the trial court is left
intact, and this case is affirmed by an equally divided court.
I would reverse the decision of the trial court for the following reasons.
         The charges in this case were brought after the
victim, K, gave his mother a note saying that he had been
“raped by a transgender” woman on the previous day. K was
underage—three days from his seventeenth birthday.
Defendant was a 28-year-old woman. Defendant and K met
at a library and, by all accounts, the two began flirting.
After considerable time flirting, K followed defendant from
a library study room to the men’s restroom and into a bathroom stall. K did not feel coerced to follow defendant, and
defendant did not do anything to physically make K follow
her. K did not know exactly what was going to happen in
the restroom, but he testified that he entered the bathroom
because he “desire[d] to have sexual contact” with defendant.
         Defendant shut the stall door behind K, which
involved a bathroom stall latch, but no lock. While standing in front of K with her back to the stall door, defendant
placed one hand on K’s shoulder and pushed K to his knees.
There is no testimony about the strength of that “push.” As
K reached his knees, defendant pulled down her sweatpants
exposing her penis.
         Now on his knees, K no longer desired to have sexual contact with defendant, but did not communicate that
fact. His mouth was “shut,” he “didn’t know what to do,” and
he “couldn’t bring [him]self to do anything.” No threats were
made; no words were spoken. K’s mouth “opened,” and defendant proceeded to orally sodomize K.
         Nonconsensual sexual contact is a crime. ORS
163.415. Oregonians under 18 years of age cannot consent
to sexual contact, as a matter of law. Accordingly, by virtue
of the fact that the victim in this case was under 18, there is
no dispute that a crime occurred. The question is the degree
of the crime as contemplated by the legislature.
110                                         State v. Lockhart

          Under Oregon law, a wide variety of sexual offenses
are elevated in their severity when a defendant compels submission to the nonconsensual sexual act through application
of either (1) “[p]hysical force,” or (2) “[a] threat, express or
implied, that places a person in fear of immediate or future
death or physical injury to self or another person, or in fear
that the person or another person will immediately or in
the future be kidnapped.” ORS 163.305(1). What is key is
that just because sexual conduct is nonconsensual does not
mean that it has occurred by “forcible compulsion.” Rather,
forcible compulsion represents “a legislative choice to impose
a greater punishment when a defendant goes beyond subjecting the victim to nonconsensual sexual intercourse or
sexual contact.” State v. Nelson, 

, 

 (2011), rev dismissed as improvidently granted, 

, 

 (2012).

         Forcible compulsion by physical force occurs when a
person uses “physical force” to “compel” someone to “submit
to or engage in” sexual contact. ORS 163.305(1)(a); see State
v. Marshall, 

, 

 (2011) (concluding that, although ORS 163.427 does not specify what
the victim is being forcibly “compelled” to do, the “only possible” meaning in context is that the victim is being compelled by force to “submit to or engage in” sexual contact).
In Marshall, the Oregon Supreme Court made clear that
the amount of force need not rise to the level of violence but
recognized that some quantum of force—in a Newtonian
sense—is present in every human physical encounter. 

. Accordingly, the court clarified that when the
state seeks to allege a more serious nonconsensual sexual
crime, it bears the burden of proving the presence of force
beyond that which is always present, a force “greater than or
qualitatively different from the simple movement and contact that is inherent in the action of touching an intimate
part of another.” 

.

        Under Marshall, when considering compulsion by
physical force, a court looks to two separate elements: (1) the
amount and nature of the force, and (2) the causal relationship between the force and the submission to sexual contact.
When considering the amount or nature of the force, “the
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state must prove that the person used enough force to overcome the victim’s will, i.e., the victim’s desire not to engage in
the sexual contact.” State v. Beckner, 

,

, rev den, 

 (2020) (citing Marshall,

). As we indicated in Beckner, the amount of
force “is ordinarily a question of ‘degree’ and highly context
dependent.” 

 Thus, relative ages, differences in size and
strength between the victim and the defendant, and the relationship between the victim and the defendant all may be
contextual factors in evaluating whether the amount of force
was “sufficient to ‘compel’ [the victim] to submit to or engage
in a sexual contact against his or her will.” Marshall, 

; State v. O’Hara, 

, 

(2012), abrogated on other grounds by State v. Vanornum, 

, 

 (2013) (holding that there was sufficient
evidence of forcible compulsion where the defendant, a physically large man in his mid-40s, used his body weight to push
the teenaged victim down onto a bed, and then held her arms
above her head while having intercourse with her).
         The issue of causation, however, is less context
driven. It is insufficient that the context of the encounter,
or the totality of the circumstances, include force. Rather,
the state must establish a direct causal link between the
specific act of force and the submission to the sexual contact.
As we explained in Beckner:
       “In Marshall, the state argued against a causation
   requirement, asserting ‘that first-degree sexual abuse can
   be proved by showing an act of physical compulsion that
   was part of the circumstances surrounding the particular
   sexual contact at issue, without regard to whether the act
   of compulsion had any causal relationship to the sexual
   contact.’ [

]. The Supreme Court disagreed,
   expressly concluding that ORS 163.427 requires a causal
   relationship between the defendant’s use of physical force
   and the victim’s submission to or engagement in the sexual
   contact. It is not enough that ‘the sexual contact be accompanied by some degree of forcible compulsion,’ … or that
   the ‘totality of the circumstances’ included some act of forcible compulsion. [

] … The use of physical
   force must cause the victim to submit to or engage in the
   sexual contact.”
303 Or App at 752-53.
112                                        State v. Lockhart

        It is that distinction—the distinction between force
that causes submission to the sexual contact, versus forces
that merely accompanies the sexual contact—that is the
axis upon which this case turns. Here, as explained by the
prosecutor to the jury, the only acts that the state alleged
constituted force were “pushing his shoulders down and
blocking the stall.”
         In its effort to establish that either of those two
acts constitute force for purposes of the statute, the state
is allowed to draw on reasonable inferences. See Delgado
v. Souders, 

, 

 (2002); State v.
Beason, 

, 

 (2000), rev den,

 (2001). But proper inferences are distinct from
speculation. State v. Bivins, 

, 

 (2004). An inferred fact must be one that the jury is convinced follows beyond a reasonable doubt from the underlying facts. State v. Lopez-Medina, 

,

 (1996). As we have noted, the line between
permissible inference and speculation is drawn, ultimately,
“ ‘by the laws of logic.’ ” Bivens, 

 (quoting
Tose v. First Pennsylvania Bank, N.A., 648 F2d 879, 895
(3d Cir), cert den, 

 (1981)). When logic counsels
that the inference requires “too great an inferential leap,”
or depends on the “stacking of inferences” we have strayed
into impermissible speculation. See, e.g., LopezMedina, 

; State v. Piazza, 

, 

 (2000) (“[T]he stacking of inferences that the state urges
is simply too speculative.”); Wood v. Baldwin, 

, 

, rev den, 

 (1999) (similar conclusion). Here, the state failed to establish, either by evidence
or nonspeculative reasonable inference, that either of those
acts caused the nonconsensual sexual contact, rather than
merely accompanied it.
        First, the state’s characterization of defendant as
“blocking” the door is only that—characterization. This
encounter occurred in a bathroom stall, a small space where
any positioning of two people was going to involve some relationship to the stall door. As K testified:
      “[DEFENSE COUNSEL]: So she’s pushing you down
   with her right hand, and pulling her pants down with
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   her left hand, and at the same time blocking your
   door?
      “[K]: She was standing in front of the door.”
There is no testimony that defendant held the door shut,
barred the door, or prevented K from reaching the door.
There is only testimony that, in a confined, unlocked, bathroom stall where both went willingly for the purpose of sexual contact, defendant was the one “standing in front of” the
door. If “standing” is force at all, it is merely force accompanying the sexual contact, not causing it.
         As to the push on the shoulders, the description of
the act offered by the state in testimony—as a “push”—is
neutral. As K testified:
   “[K]: [Defendant] pushed me down on the shoulders,
   pushed me onto the ground on my knees.
   “[PROSECUTOR]:        Onto your knees?
   “[K]: Yes.
   “[PROSECUTOR]:        And the defendant was standing?
   “[K]:   Yeah.
   “[PROSECUTOR]:        What—what did you think at that
   point?
   “[K]:   Um—
   “[PROSECUTOR]:        Was the defendant clothed or unclothed?
   “[K]: No pants on.”
There was no testimony about the force, or power, of the
“push” which, by all accounts, occurred either before, or
at the same time that defendant’s penis was exposed. Was
it gentle, or a shove? Was it a hand on a shoulder to coax
movement, or a hand on a shoulder demanding movement?
No testimony was offered to clarify; there is nothing in this
record to answer those questions or allow the factfinder to
draw a reasonable inference about the nature of the “push.”
Inference cannot be made from a vacuum; in such instance,
there is only speculation. Accordingly, the description of the
act as a push, on its own, is insufficient to assess whether
114                                         State v. Lockhart

the act was “greater than or qualitatively different” from
the actions inherent in the sexual act and equally insufficient to support a nonspeculative inference that the push
caused K to submit. Marshall, 

.
           The relative characteristics of defendant and K
likewise offer little. Certainly, there were differences in age,
height, and weight—K was five foot two to five foot three
inches tall, and defendant was five foot eight inches tall.
K weighed 120-130 pounds, and defendant weighed 150
pounds. But the differences here are not of the nature we
considered in State v O’Hara, which involved “a man in his
forties [and] a 14-year-old child. He weighed about twice as
much as she did.” 

. Defendant, though
older, was a stranger to K and does not seem to have been
in charge of the library or to have otherwise exercised control over K or the premises—which were publicly open at the
time. There is no testimony that defendant benefited from
an imbalanced power dynamic or exploited a relationship of
trust that might give rise to any reasonable inferences about
the nature of the push, or K’s vulnerability to it. Again, distinct from O’Hara where we noted that the defendant “occupied a position of trust in the victim’s family. Although not
a biological relative of the victim, she regarded him as an
‘uncle.’ ” 

.
         The state did offer’s K’s testimony that, at the
time of the push, he was “no longer a willing participant”
in the sexual encounter. Again, there is no dispute that
this encounter was nonconsensual and unlawful. But force
is distinct from consent. K’s testimony about his unwillingness does not answer the critical causal question. The
issue is not whether K was unwilling; the issue is whether
defendant’s act of force, the push, was the act that overcame K’s will. Beckner, 

. The legislature did not elevate nonconsensual sexual contact compelled
by mental or emotional manipulation or circumstance.
It must be defendant’s physical act that “cause[s] the victim to submit.” 

 at 753 (citing Marshall, 

).
Defendant’s testimony that, at the time of the push, he was
unwilling, does not offer a nonspeculative connection that it
was the push, and not something else, that overcame that
unwillingness.
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        Finally, the state advances an argument that, in
part, appears to rely on K’s subjective knowledge, or lack of
knowledge, about defendant. It is undisputed on this record
that K willingly entered the bathroom stall with defendant,
anticipating a sexual encounter. But, as the state argues,
“The trier of fact may consider circumstances known to the
defendant [such as] … K was attracted to defendant …
[and] K believed defendant was [anatomically] female.”
         The argument is unsettling for two reasons. First,
that argument seems to imply that a defendant’s transgender identity is part of the totality of circumstances that
could render a push on a shoulder forcible compulsion. By
their nature, facts that are part of a totality analysis are
facts that, if removed, might alter the outcome. Accordingly,
that same argument would carry, necessarily, the negative
proposition that the same act—a push on a shoulder—might
not be forcible compulsion for a cisgendered individual. That
dichotomy is unacceptable.
         Second, the state’s argument improperly focuses
on the subjective perceptions of K. It is undisputed on this
record that K never communicated to defendant that his
initial desire to engage in a sexual encounter had ended,
neither at the point of defendant’s hand upon his shoulder,
nor even upon seeing defendant’s penis. To be clear, K was
not required to resist, to object, or to say “no.” That absence
of communication is noteworthy only to clarify that the
state’s argument in this regard is asking us to draw inferences from subjective perceptions, not objectively observable
facts or circumstance, and that is further complicated by
the uncontested fact that the encounter began willingly, but
transformed somewhere along the timeline.
         The state’s argument is in too great a tension with
the criminal statutory scheme at issue—specifically the
mens rea needed to prove the element of forcible compulsion. The state appears to argue that K was only attracted
to defendant based on his subjective belief as to defendant’s
anatomy. However, while that fact may be gleaned from K’s
trial testimony, there is absolutely no evidence that K communicated anything similar to defendant at the time of the
actual encounter. It is the time of the encounter, not the time
116                                            State v. Lockhart

of trial, that controls. Accordingly, that argument appears
to rely on the unspoken, uncommunicated, subjective perception of K with regard to his initial attraction to defendant. More importantly, it appears to rely on an unspoken,
uncommunicated, subjective perception of K’s response to
seeing defendant’s penis. And to the extent the state’s argument grounds itself in that unspoken, uncommunicated,
subjective perception, it is in tension with the state’s need to
prove, under Oregon law, the attendant mental state. As we
explained in Nelson,
   “the ‘subjected to forcible compulsion’ element of first-degree rape and first-degree sexual abuse ‘necessarily
   requires a culpable mental state’ because it directly ‘concerns the substance or quality of the crime[s]—the harm
   or evil sought to be prevented.’ … Accordingly, a culpable
   mental state applies to the forcible compulsion element of
   those crimes, and the state was required to prove beyond
   a reasonable doubt that defendant acted with the requisite
   mental state with respect to that element.”

.
         Because the state is obligated to prove an accompanying mental state—for example, as was pled here, that
defendant knew that the nonconsensual sexual contact was
being compelled by force—it follows that what constitutes
force must, therefore, be objectively knowable. The mens rea
attached to the forcible compulsion element of the crime is
critical context that compels the conclusion that any statutory interpretation of “force” that would transform an
unremarkable action into force based on the subjective,
uncommunicated, and unknowable perceptions of one of the
persons involved, is incorrect. Rather, the statutory context
of the attendant mens rea compels the conclusion that the
act envisioned by the legislature must be objectively recognizable as force distinct from the sexual contact.
         That conclusion does not require that a victim
express nonconsent, or say “no.” The objectively recognizable
nature of the act can be gleaned from circumstance, but that
is lacking here. On this record, the state offered no evidence
from which it could be inferred that the hand on the shoulder was the cause of K’s submission. Our task is to look for
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what evidence, and nonspeculative reasonable inferences
that flow from that evidence, would establish that the force
that was exerted could be objectively recognizable as causing submission to the sexual contact, and that it, in fact,
caused that submission. Absent any such evidence, the state
cannot be said to have carried its burden to establish that
defendant’s hand on K’s shoulder was qualitatively different “from the simple movement and contact that is inherent in the action of touching an intimate part of another.”
Marshall, 

. Here, the state failed to carry its
burden that the hand on the shoulder caused the sexual contact and did not merely accompany it. Defendant’s conduct
was a crime, but it was not a crime elevated in seriousness
by proof of forcible compulsion. Accordingly, I would reverse
the ruling of the trial court.
           I respectfully dissent.
           Ortega, Egan, Aoyagi, and Kamins, JJ., join in this
dissent.
           LAGESEN, C. J., dissenting.
        I would conclude that the evidence is insufficient to
support a finding that that the victim was “subjected to forcible compulsion” by defendant within the meaning of ORS
163.405(1)(a) and ORS 163.427(1)(a)(B), and so would reverse
defendant’s convictions on Counts 1 and 2.
         As pertinent to this case, a victim of a sex offense is
“subjected to forcible compulsion” for purposes of those statutes if the victim is “compel[led] … by physical force” to
engage in sexual conduct. ORS 163.305(1). To qualify under
the statutes, the force at issue must have two properties.
First, the force “must be sufficient to ‘compel’ the victim,
against the victim’s will, to submit to or engage in the sexual contact, but it need not rise to the level of violence.” State
v. Marshall, 

, 

 (2011). Second,
not only must the force be sufficient to compel the victim to
engage in sexual contact, it also must, in fact, result in the
sexual contact. 

.
        In this case, the only physical force identified by
the state is the one-handed push on the victim’s shoulder
118                                                      State v. Lockhart

that preceded defendant’s revelation of male genitalia. The
record is devoid of detail about the character and degree of
force, making it speculative to infer that the push itself was
force sufficient to compel the victim to submit to the sexual contact with defendant. At most, it is inferable that the
push is what caused the victim to change his mind about
what, until that point, had been a factually consensual, but
not legally consensual, interaction. That does not allow for
a reasonable inference that the push itself was sufficient to
compel the victim to engage in sexual contact against his
will, or that the push itself—rather than defendant’s disclosure of male genitalia and the overwhelming effect that
disclosure had on the victim—resulted in the victim submitting to sexual contact.1
         It is important to recognize what this conclusion
does not mean. It does not mean that the victim consented
to sexual contact with defendant. Far from it. That sex is
not compelled by physical force does not mean that sex is
consensual. Here, separate and apart from the fact that the
victim’s age rendered him legally incapable of consent, the
evidence would support a finding that the victim, regardless
of age, did not factually consent to the contact and did not
have a reasonable opportunity to express his lack of consent
under the circumstances. It is also inferable that defendant
was aware of the risk that the victim had not consented to
sexual contact with defendant’s penis, yet disregarded that
risk in proceeding without ascertaining whether the victim
consented to that contact.
         A reading of the current Oregon statutes reveals
that they supply little guidance when it comes to a case like
this one, in which an interaction that was factually consensual at its outset turns nonconsensual. In contrast, a section

    1
       Although defendant does not raise the issue, the jury instructions that the
trial court delivered on first-degree sodomy and first-degree sexual abuse would
have permitted the jury to find defendant guilty on those counts without finding
that any physical force used by defendant in fact resulted in the sexual contact,
as required under Marshall. The instructions echoed the statutory wording itself,
which does not on its face explain that the required force must in fact result in
the sexual contact. See Marshall, 

 (discussing the point). This
creates the possibility that the jury convicted defendant based on a finding that
defendant both used physical force (the push) and subjected the victim to sexual
contact, without finding a causal nexus between the force and the contact.
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of the recently revised Model Penal Code provisions addressing sexual assault and related offenses addresses the situation at hand by specifically accounting for how something
unexpected in the course of a sexual encounter—such as the
unexpected revelation of male genitalia—can bear on consent and, more critically, the ability to communicate lack of
consent.
       Defining the crime of “Sexual Assault in the
Absence of Consent,” section 213.6 provides:
   “(1) An actor is guilty of Sexual Assault in the Absence of
   Consent when:
      “(a) the actor causes another person to submit to or
   perform an act of sexual penetration or oral sex; and
      “(b)   the other person does not consent to that act; and
      “(c) the actor is aware of, yet recklessly disregards, the
   risk that the circumstances described in paragraphs (a)
   and (b) are present.
   “(2) Grading. Sexual Assault in the Absence of Consent
   is a felony of the fifth degree [three-year maximum], except
   that it is a felony of the fourth degree [five-year maximum]
   when:
      “(a) the other person has, by words or actions, expressly
   communicated unwillingness to submit to or perform the
   act, or the act is so sudden or unexpected that the other person has no adequate opportunity to express unwillingness
   before the act occurs; and
       “(b) the actor is aware of, yet recklessly disregards, the
   risk that a circumstance described in paragraph (a) existed
   at the time of the act of sexual penetration or oral sex.
   “(3) If applicable, the actor may raise an affirmative
   defense of Explicit Prior Permission under Section 213.10.”
Model Penal Code: Sexual Assault and Related Offenses
§ 213.6 (Am L Inst, Tentative Draft No. 5, 2021) (MPC)
(emphases added).
         A provision like this one could supply greater clarity to Oregon law on sexual offenses. That, in turn, could
both help people to conform their conduct to the law more
easily, and help ensure that sexual conduct resulting in
120                                                         State v. Lockhart

criminal charges is evaluated by judges and juries under
clear and objective standards appearing on the face of the
statutes.2 Should the legislature wish to consider the point,
the recently revised provisions of the Model Penal Code offer
a place to start.
           Ortega and Kamins, JJ., join in this dissent.




    2
      In that regard, it also is worth noting that the revised provisions of the
Model Penal Code provide a definition of “physical force” that would make it much
easier for people to know what constitutes “physical force” in the context of the
laws governing sex offenses than does current Oregon law, which defines the
term largely through caselaw. Defining “[p]hysical force or restraint,” section
213.0(2)(f) provides:
         “(i) ‘Physical force or restraint’ means a physical act or physical restraint
    that inflicts more than negligible physical harm, pain, or discomfort or that
    significantly restricts a person’s ability to move freely. More than negligible
    physical harm includes but is not limited to a burn, black eye, or bloody nose,
    and more than negligible pain or discomfort includes but is not limited to the
    pain or discomfort resulting from a kick, punch, or slap on the face.”
MPC § 213.0(2)(f)(i).