State v. Reed

¶1dissenting.

¶2The jury found that defendant had sexually abused, unlawfully sexually penetrated, and attempted to rape his 35-year-old, developmentally delayed daughter. Although the jury found that defendant had not forcibly compelled his daughter to engage in those acts, it also found that his daughter was incapable of consenting to those acts by reason of a mental defect. The majority holds that no reasonable juror could find that the daughter lacked the capacity to consent. Because, in my view, there was circumstantial evidence from which a reasonable juror could draw that inference, I respectfully dissent.

¶3A person commits the crime of first-degree sexual abuse, unlawful sexual penetration, and attempted first-degree rape if that person engages in certain sexual acts with a person who is “incapable of consent by reason of mental defect.” See ORS 163.427(1)(a)(C) (first-degree sex abuse); ORS 163.411(1)(c) (unlawful sexual penetration); ORS 163.375(1)(d) (first-degree rape). The question whether a person is “incapable of consent by reason of mental defect” turns on whether that person “suffers from a mental disease or defect that renders the person incapable of appraising the nature of the conduct of the person.” ORS 163.305(3). There is no dispute that a reasonable juror could find that the victim in this case suffered from a “mental defect.” A psychologist who had tested the victim testified that she was developmentally delayed, and the record provided additional evidence of her limited intellectual and emotional development.

¶4The question is whether a reasonable juror also could find that her condition rendered her “incapable of appraising the nature of [her] conduct.” As the majority recognizes, that question entails two issues. The first is what the phrase “incapable of appraising the nature of the conduct” means. On that issue, I agree with the majority that the word “appraising” is key to understanding the meaning of the quoted phrase. As the majority notes, the word “appraise” *249means “to judge and analyze the worth, significance or status of.” Webster’s Third New Int’l Dictionary 105 (unabridged ed 2002). Thus, the question whether a person lacks the capacity to consent by reason of mental defect turns on whether the person is capable of judging or analyzing the worth, significance, or socially accepted status of engaging in particular sexual activity. Put another way, the question is whether the person is capable of assessing the personal and social consequences of his or her decision to engage in that activity.1

¶5The issue that remains, however, and the issue on which I part company with the majority, is whether the record permitted a reasonable juror to find that the victim lacked that capacity. On that issue, Dr. Colistro, a psychologist, testified that he had tested the victim’s intellectual ability twice, once when she was 14 and again when she was 35. The first time that he tested the victim, her scores put her intellectual ability “beneath the first percentile, which means that less than one percent of the overall population scores lower than you.” The second time that he tested the victim, shortly after her mother reported the sexual abuse, her overall score had risen slightly but was still “so low that it falls at the first percentile.” Based on those scores, Colistro diagnosed the victim’s present condition as mild retardation.

¶6Colistro explained that a person’s score on an intelligence test does not necessarily measure how well that person can function socially. Other factors come into play.2 Colistro testified that he, and others, divide a person’s deficiencies in social functioning into three categories — mild, *250moderate, and marked. He categorized the victim’s deficiencies in social functioning as “marked,” and those deficiencies were in addition to her diminished intellectual capacity. Finally, the victim’s mother explained that her daughter has difficulty speaking and hearing.

¶7Colistro’s observations of the victim and the information that he learned from the victim’s mother were consistent with his diagnosis. He explained that the victim is “a very dependent person,” that she lives at home, that she is unable to hold a job even in sheltered settings such as Goodwill and the Salvation Army, that she is not able to handle her own money, that she depends on her mother for “support and guidance,” and that she functions socially at the level of a preadolescent. For example, when asked what she likes to read, the victim answered, “Snow White.” Colistro concluded that the victim “needs somebody, another adult who can direct her and care for her to assure her safety in all domains, particularly with regard to social functioning.”

¶8As the majority notes, the victim testified that defendant had engaged in sexual contact with her on three occasions. The first time, the victim and defendant were “[p]icking rocks” (apparently looking for agates) under a bridge. Defendant came over and sat behind his daughter on a “big rock.” She testified,

“[H]e start putting — he was putting — touched me, and I told him no. I said no, (inaudible). T don’t like to be touched.’ And he started to unbuckle my belt (inaudible), unbuckled my belt.”

¶9Defendant continued until he touched and then penetrated his daughter’s vagina with his hand.

¶10The second time, defendant and his daughter were parked near the airport in his minivan “watching the planes go in and out.” According to his daughter, defendant touched her twice that day. He “started with [her] shirt and (inaudible) [her] shirt and under [her] blouse and touched [her] breast.” She told him, “Get your hands out of there. I don’t want (inaudible).” Later, when he did the same thing again, she said, “Let go of me. You’re hurting me. Let go.” Defendant, however, did not let go.

¶11*251The third time, the victim went over to defendant’s house to watch television. She was bending over on the couch looking at the birds out the window, when defendant came up behind her and started undoing her pants. The victim told defendant, “Let go. Don’t touch,” but he continued to pull her pants down. Eventually, defendant stopped before engaging in sexual intercourse with his daughter. After explaining that she had told defendant that she had wanted to leave, the victim said, “I’m not that type of girl to do that.”

¶12Defendant argues that the victim’s repeated refusals to engage in sexual activity demonstrated that she was capable of assessing the personal and social consequences of agreeing to his advances. Although the jury could have drawn that inference, it reasonably could have drawn the contrary inference. The jury could have inferred that the phrases that the victim used, “Let go,” “Don’t touch,” and “You’re hurting me,” suggested a more visceral reaction to an unexpected and unpleasant physical experience — an experience made all the more unsettling by its source. The fact that a 12-year-old child — that is, a person who functioned at the same level as the victim, according to Colistro — says, “Don’t touch” or “Stop,” does not imply that the child has the capability to assess the personal and social consequences of engaging in sexual activity. The jury reasonably could have drawn (and did draw) that conclusion here.

¶13Not only does this record not compel the conclusion that the victim had the requisite capability to consent to defendant’s advances, but it permitted a reasonable juror to conclude that she lacked that capability. As noted, the victim functions socially at the level of a preadolescent. According to the record, her favorite book is Snow White; she cannot manage her own money; and, according to Colistro, she needs some adult who can “direct her and care for her to assure her safety.” The jury reasonably could have inferred from that testimony, as well as from the evidence of the victim’s diminished mental ability, that the victim lacked the capability to weigh and assess the consequences of agreeing to engage in sexual activity. Indeed, given Colistro’s testimony that the victim functioned socially at the level of a preadolescent, the jury reasonably could have inferred that, like an underage child, she lacked the capability to make judgments about the *252complex personal and social issues that surround decisions regarding sexual activity. See, e.g., ORS 163.375(l)(b) (victim under 12 years of age lacks capacity to consent to sexual intercourse).3

¶14To be sure, the state could have introduced evidence, from Colistro or others, that directly addressed the victim’s ability to assess the personal and social consequences of engaging in sexual activity. But the state also may prove its case by circumstantial evidence, State v. Rose, 311 Or 274, 281, 810 P2d 839 (1991), and the circumstantial evidence in this case permitted a reasonable juror to find that the victim was not capable of consenting by reason of mental defect. Because I would affirm the trial court’s judgment, I respectfully dissent.

¶15Balmer, J., joins in this dissent.