791
Argued and submitted March 6; decision of Court of Appeals reversed,
judgment of circuit court reversed, and case remanded to circuit court for
further proceedings August 28, 2020
STATE OF OREGON,
Respondent on Review,
v.
AUSTIN RAY HALTOM,
Petitioner on Review.
(CC 16CR55213) (CA A165666) (SC S066955)
472 P3d 246
Defendant was charged with second-degree sexual abuse, which is defined
in ORS 163.425(1)(a) as “subject[ing] another person to sexual intercourse …
and the victim does not consent thereto.” Noting that ORS 163.425(1)(a) does not
specify any particular mental state, defendant argued that the “victim does not
consent” element of the offense was a part of the proscribed “conduct,” for which,
under the general culpability provisions of the Criminal Code, proof of a minimum mental state of “knowingly” is required. The trial court concluded, however, that the “does not consent” element is a circumstance, to which a minimum
mental state of “criminal negligence” would attach—and, over defendant’s objection, it instructed the jury in accordance with that theory. The jury found that
defendant had been reckless with respect to the victim’s nonconsent to sexual
intercourse, but that he had not actually known that she had not consented. The
trial court entered a judgment of conviction on the jury’s verdict and defendant
appealed, arguing that the trial court had erred in giving incorrect jury instructions and in entering a judgment of conviction when the jury had only found that
he was reckless with respect to the victim’s nonconsent. The Court of Appeals
affirmed and defendant sought review. Held: The requirement in ORS 163.425
(1)(a) that the victim “does not consent” to the sexual conduct is an integral part
of the conduct that the statute proscribes and proof of a minimum mental state of
“knowingly” is required with respect to that element.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
En Banc
On review from the Court of Appeals.*
Neil F. Byl, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the
brief for petitioner on review. Also on the brief was Ernest
G. Lannet, Chief Defender.
______________
* On appeal from Yamhill County Circuit Court, Ladd Wiles, Judge. 298 Or
App 533,
447 P3d 66 (2019).
792 State v. Haltom
Michael A. Casper, Assistant Attorney General, Salem,
argued the cause and file the brief for respondent on review.
Also on the brief were Ellen F. Rosenblum, Attorney General,
and Benjamin Gutman, Solicitor General.
NELSON, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
Cite as
366 Or 791 (2020) 793
NELSON, J.
In State v. Simonov, 358 Or 531, 546-48,
368 P3d
11 (2016), in the context of analyzing ORS 164.135(1)(a), a
statute that criminalized using a vehicle “without consent
of the owner,”1 this court held that the “without consent”
element of that offense is part of the “essential character” of
the conduct that the statute proscribes, and therefore must
be treated as a “conduct” element for purposes of determining the minimum mental state that attaches to the element
when the statute fails to specify a mental state.2 Relying on
the fact that general provisions in the Criminal Code appear
to contemplate at least a knowing mental state for any “conduct” element of a crime, we held that the state was required
to prove that a defendant charged under ORS 164.135(1)(a)
knew that the vehicle’s owner had not consented to its use at
the relevant time.
Id. We rejected the state’s argument that
the “without consent” element was a “circumstance” element
to which a minimum mental state of “criminal negligence”
would attach.
Defendant in the present case was convicted of
an entirely different crime of which lack of consent is an
element—second-degree sexual abuse as defined in ORS
163.425(1)(a), i.e., “subject[ing] another person to sexual
intercourse” or certain other sexual acts when “the victim
does not consent thereto.” He contends that the “does not
consent” element in ORS 163.425(1)(a) plays a similar role
to that of the “without consent” element in the unauthorized
1
Simonov analyzed the version of ORS 164.135(1)(a) that was in effect in
2016, when the case was decided. However, ORS 164.135 was amended in 2019,
Or Laws 2019, ch 530, § 1, and section (1)(a) of the statute no longer contains the
“without consent of the owner” wording that was at the center of the Simonov
opinion. In this opinion, when we refer to ORS 164.135(1)(a), we are referring to
the version of the statute that was analyzed in Simonov, i.e., ORS 164.135(1)(a)
(2015).
2
As described in greater detail below, 366 Or at 797-99, 798 n 5, the general culpability statutes set out at ORS 161.085 to 161.115 appear to divide
the material elements of an offense into three different categories—“conduct,”
“circumstances,” and “results.” As interpreted in Simonov, those statutes instruct
that, when a statute defining a criminal offense fails to specify any mental state,
the state must prove, for any “conduct” element of the offense, that the defendant
had either an intentional or knowing mental state; but for “circumstance” and
“results” elements, proof that the defendant had a knowing, reckless, or criminally negligent mental state will suffice. 358 Or at 538-40.
794 State v. Haltom
use of a vehicle (UUV) statute at issue in Simonov, and
that, insofar as ORS 163.425(1)(a) does not specify a mental
state that attaches to the “does not consent” element, both
the analysis and ultimate conclusion in Simonov apply and
establish that “knowingly” is the minimum mental state
that attaches to the “does not consent” element. Thus, he
argues that, to convict him under ORS 163.425(1)(a), the
state was required to prove that he had engaged in sexual
intercourse with the victim knowing that she did not consent and that the trial court therefore erred when it denied
his request for an instruction to that effect and entered a
judgment of conviction based on a jury finding that he had
merely been reckless with respect to the victim’s consent.
Based on the analysis set out below, we conclude that the
trial court erred and that the judgment of the trial court,
and the Court of Appeals decision affirming that judgment,
must be reversed.
I. BACKGROUND
The relevant facts are undisputed. Defendant was
prosecuted on charges of first-degree rape and a lesserincluded offense, second-degree sexual abuse as defined in
ORS 163.425(1)(a),3 based on evidence that, the morning
after having had consensual intercourse with his 17-yearold then-girlfriend, he insisted on having intercourse again,
ignoring her when she told him that it hurt and that she
did not want to, and persisting as she lay there “frozen” and
crying. Other evidence submitted at trial, including defendant’s own testimony, raised factual issues as to whether
defendant had understood the victim’s protests and conduct
as a refusal.
At trial, the parties disagreed about the minimum
mental state that attached to the “does not consent” element
of the second-degree sexual abuse charge. Defendant sought
a jury instruction requiring the jury to find that he had
acted with knowledge of the victim’s nonconsent in order
to convict, while the state sought an instruction that the
jury could convict if it found that defendant’s mental state
3
As relevant here, ORS 163.425(1)(a) defines sexual abuse in the second
degree as “subject[ing] another person to sexual intercourse … and the victim
does not consent thereto.”
Cite as 366 Or 791 (2020) 795
with respect to the victim’s nonconsent had been knowing,
reckless, or criminally negligent.4 The trial court rejected
defendant’s argument that the “does not consent” element
of second-degree sexual abuse was analogous to the “without consent” element in the unauthorized use of a vehicle
crime at issue in Simonov and required the same analysis
and, ultimately, the same minimum mental state (knowing) that was found to apply in that case. It agreed with
the state that, with respect to the victim’s nonconsent, the
lesser mental states of criminal negligence and recklessness
also would support a conviction on the second-degree sexual abuse charge. The trial court gave jury instructions that
reflected the state’s view and, at the state’s suggestion, it
issued a verdict form that listed three separate versions of
the second-degree sexual abuse count, distinguished from
one another only by the mental state that was specified for
the “does not consent” element. Thus, all three versions of
the second-degree sexual abuse count required findings
that defendant had (1) subjected the victim to sexual intercourse; (2) on or around a specified date; (3) without the victim’s consent—but the first version additionally required a
finding that defendant “knew” that the victim did not consent, the second version required a finding that defendant
“was aware of and consciously disregarded a substantial
and unjustifiable risk that [the victim] did not consent,” and
the third version required a finding that defendant “failed
to be aware of a substantial and unjustifiable risk that [the
victim] did not consent.” The jury found defendant “guilty”
of the second version of the second-degree sexual abuse
count (i.e., it found that he “was aware of and consciously
disregarded a substantial and unjustifiable risk that [the
victim] did not consent”) and “not guilty” of the rape charge
and the other two versions of the sexual abuse charge. Thus,
4
As noted, ORS 163.425(1)(a) uses the phrase “the victim does not consent”
to refer to the element under consideration. Other statutes mentioned in this
opinion use other wording to describe the nonconsent element—for example, ORS
164.135(1)(a), the UUV statute at issue in Simonov, uses the phrase “without
consent of the owner.” In this opinion, we quote the specific phrase used in the
statute under discussion—“does not consent,” “without consent,” etc.—when that
kind of specificity seems necessary or helpful in the context. When that level
of specificity is not necessary—for example, when we are providing a factual
description of the victim’s conduct or referring in a general way to elements of
this sort—we use generic wording, most often “nonconsent.”
796 State v. Haltom
the jury affirmatively found, with respect to the charge of
second-degree sexual abuse, that, when defendant subjected
the victim to sexual intercourse, he had not known that the
victim had not consented thereto. Over defendant’s continuing objection that he could not be found guilty of second-degree sexual abuse in the absence of a finding that he
knew that the victim did not consent, the trial court entered
a judgment of conviction and sentence on the second-degree
sexual abuse charge.
Defendant appealed, arguing that the trial court
had committed reversible error when it instructed the jury
on the second-degree sexual abuse charge and entered a
judgment of conviction on that charge in the absence of a
jury finding that defendant had known that the victim did
not consent. Defendant argued that, by analogy to Simonov,
the victim’s nonconsent was a “conduct” element that, in the
absence of any specification in the statute as to which mental state applied, required proof that he had known at the
time that the victim did not consent to sexual intercourse.
In a brief per curiam opinion, the Court of Appeals affirmed.
State v. Haltom, 298 Or App 533,
447 P3d 66 (2019). It held
that the outcome was controlled by its own decision in a case
that preceded Simonov—State v. Wier,
260 Or App 341,
317
P3d 330 (2013). Wier held that, in the statute that defines
third-degree sexual abuse (subjecting another person to
“sexual contact” when the person “does not consent”), the
victim’s nonconsent is a “circumstance” element for which,
in the absence of any specification of mental state, proof of
knowledge, recklessness, or even criminal negligence all
would suffice for conviction. Wier,
260 Or App at 351-53.
Although defendant had argued to the Court of Appeals that
Wier did not survive this court’s decision in Simonov, the
court disagreed, noting that Simonov had neither overruled
Wier nor employed an analysis that demonstrated that Wier
was “plainly wrong.” Haltom,
298 Or App at 535. One judge
opined in a concurrence that, in light of Simonov, Wier was
wrong but not “plainly wrong”—the rigorous standard used
by the Court of Appeals in deciding whether to overrule one
of its own prior cases.
Id. at 535-41 (Aoyagi, J., concurring).
The concurring judge therefore agreed with the majority
that Wier—which involved a statute that is closely related
Cite as
366 Or 791 (2020) 797
to the second-degree sexual abuse statute at issue in the
case—controlled the Court of Appeals decision.
Id.
Defendant sought review of the Court of Appeals
decision in this court, and we allowed review to consider
how the principles described in Simonov apply to the second-degree sexual abuse statute.
II. ANALYSIS
A. Simonov
The natural starting point is a more illuminating
description of Simonov, 358 Or 531. As noted, Simonov was
concerned with the UUV statute, ORS 164.135(1)(a), which
makes it a felony to “take[ ], operate[ ], exercise[ ] control
over, ride[ ] in or otherwise use[ ] another’s vehicle … without consent of the owner.” (Emphasis added.) The defendant
in Simonov had been convicted of UUV based on evidence
showing that both he and his brother had used a neighbor’s
borrowed truck in a manner that far exceeded the scope of
the neighbor’s permission, but also showing that the defendant may not have been aware of the limited scope of the
neighbor’s permission. At trial, the defendant had argued
for an instruction that, to convict, the jury must find that he
had known that the use of the truck was without the owner’s
consent, but the trial court had instead instructed the jury
that it also could convict if it found that the defendant was
reckless or criminally negligent with respect to the “without
consent” element. After the defendant was convicted based
on those instructions, he appealed, arguing that the jury
instructions were incorrect. The Court of Appeals agreed
with the defendant and reversed, and the state sought
review.
This court began its analysis by setting out certain
“core principles” that are useful in any effort to determine
what mental state attaches to an element of a crime. These
core principles include that: (1) the statute that defines an
offense, read in the context of the Oregon Criminal Code’s
general culpability provisions, determines the applicable
mental state or states; (2) under ORS 161.095(2), a culpable mental state is required for each element of the offense
except for those relating to the statute of limitations,
798 State v. Haltom
jurisdiction, venue, and the like;5 (3) under ORS 161.115(2),
if a statute does not prescribe a culpable mental state, culpability is established only if it is shown that the person
had one of the four culpable mental states enumerated and
defined in the general culpability provisions—intentionally,
knowingly, recklessly, or with criminal negligence; (4)
under the statutory definitions of those four culpable mental states, certain mental states apply to only certain categories of elements, i.e., “conduct” elements, “circumstance”
elements, and “result” elements;6 (5) knowledge is the minimum culpable mental state for conduct elements, while
criminal negligence is the minimum culpable mental state
5
ORS 161.095(2) provides, “Except as provided in ORS 161.105, a person is
not guilty of an offense unless the person acts with a culpable mental state with
respect to each material element of the offense that necessarily requires a culpable mental state.”
6
The four culpable mental states are defined at ORS 161.085(7) - (10):
“(7) ‘Intentionally’ or ‘with intent,’ when used with respect to a result or to
conduct described by a statute defining an offense, means that a person acts
with a conscious objective to cause the result or to engage in the conduct so
described.
“(8) ‘Knowingly’ or ‘with knowledge,’ when used with respect to conduct
or to a circumstance described by a statute defining an offense, means that a
person acts with an awareness that the conduct of the person is of a nature so
described or that a circumstance so described exists.
“(9) ‘Recklessly,’ when used with respect to a result or to a circumstance
described by a statute defining an offense, means that a person is aware
of and consciously disregards a substantial and unjustifiable risk that the
result will occur or that the circumstance exists. The risk must be of such
nature and degree that disregard thereof constitutes a gross deviation from
the standard of care that a reasonable person would observe in the situation.
“(10) ‘Criminal negligence’ or ‘criminally negligent,’ when used with
respect to a result or to a circumstance described by a statute defining an
offense, means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk
must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person
would observe in the situation.”
(Emphases added.) As this court observed in State v. Crosby, 342 Or 419, 428,
154
P3d 97 (2007), those definitions
“refer to three different types of material element: a conduct, a circumstance,
or a result. In Oregon, each mental state relates to two of the three categories. See ORS 161.085(7) (‘intentionally’ involves mental state as to conduct
or result, but not circumstance); ORS 161.085(8) (‘knowingly’ involves mental
state as to conduct or circumstance, but not result); ORS 161.085(9) (‘recklessly’ involves mental state as to result or circumstance, but not conduct);
ORS 161.085(10) (‘criminal negligence’ involves mental state as to result or
circumstance, but not conduct).”
Cite as 366 Or 791 (2020) 799
for both circumstance and result elements; and (6) thus, any
effort to determine the minimum culpable mental state for
a particular material element of an offense requires an initial determination of the category—conduct, circumstance,
or result—under which the material element falls. Simonov,
358 Or at 537-40.
Based on those core principles, this court in
Simonov concluded that the dispositive issue was whether
the “without consent” element of the UUV statute was “part
of the conduct proscribed by the offense or whether it [was]
a circumstance.” Id. at 540. To answer that question, it was
necessary for the court to determine what the legislature
understood to be included in “conduct.” Noting that “conduct” is defined, for purposes of the general culpability statutes, as “an act or omission and its accompanying mental
state,” ORS 161.085(4) (emphasis added),7 the court opined
that the applicable mental state necessarily informs and
shapes the meaning of “conduct.” And given that the “knowing” mental state—the minimum mental state for a conduct
element—is defined at ORS 161.085(8) to mean that “a person acts with an awareness that the conduct of the person
is of a nature so described” and that “nature” is commonly
understood to refer to “the essential character or constitution of something,” the court determined that the mental
state definitions at ORS 161.085(7) to (10) “that apply to ‘conduct’ … do not merely apply to a particular bodily movement; they also more broadly apply to other elements that
describe the nature, that is, the essential character, of the
prohibited act.”
358 Or at 540-41. Thus, the court concluded,
“conduct” elements are those that describe the “nature or
essential character of the defendant’s act or omission” or, in
other words, that “make the defendant’s own act or omission of a described nature.”
Id. at 541, 544. “Circumstance
elements,” in contrast, are “facts that attend or accompany
the defendant’s conduct,”
id. at 544, and “do[ ] not change the
essential character of the prohibited conduct,”
id. at 542.
The court then turned to the statute defining the
crime of UUV to determine whether, in enacting it, the
7
For the purposes of that definition of conduct, an “act” is a “bodily movement.” ORS 161.085(1).
800 State v. Haltom
legislature had understood the “without consent” element to
be “part of the nature or essential character of the act proscribed [therein],” i.e., conduct. Id. at 546-48. Applying the
interpretive framework set out in PGE v. Bureau of Labor
and Industries,
331 Or 606,
859 P2d 1143 (1993), and modified in State v. Gaines,
346 Or 160,
206 P3d 1042 (2009), the
court focused on text and context. It found the grammatical
role of the “without consent” element within the definition of
UUV to be relevant: The fact that it was cast as an adverbial
phrase modifying the relevant bodily movement—“rides”—
suggested that the legislature viewed lack of consent as part
of the conduct that was proscribed. Id. at 547. The court contrasted that adverbial usage with different grammatical
constructions that might suggest a different intent:
“[The legislature] could have described particular acts
and then, in a series of separately numbered provisions, it
could have described the circumstance elements attendant
to those acts. Even separating the owner’s lack of consent
from the verb in independent clauses arguably could have
signaled a legislative intent to create an independent circumstance element.”
Id. In a footnote, the court pointed to the third-degree sexual abuse statute, ORS 163.415, as an example of one of
those different grammatical constructions that would support an understanding that the nonconsent element therein
was intended as a “circumstance” element, and it noted that
in Wier, the Court of Appeals had concluded that, in that
context, the minimum mental state that attached to the element was “criminal negligence.” Id. at 547 n 5. The court
expressly noted, however, that the proper construction of
ORS 163.415 and the correctness of Wier was not at issue.
Id.
The court in Simonov also observed that the fact
that UUV is punishable as a felony seemed incompatible
with application of a criminal negligence mental state to the
“without consent” element, given that a passenger who rides
in a vehicle, naively trusting that the owner had consented
to its use, would be subject to such a severe consequence.
Id. at 548. Finally, the court suggested that it was all but
“axiomatic” that the essential nature of the act that the
UUV statute criminalizes is not mere use of a vehicle but
Cite as 366 Or 791 (2020) 801
use of a vehicle without permission.
Id. Based on the foregoing textual and contextual clues, the court concluded that,
in the UUV statute, the owner’s lack of consent is part of
the proscribed conduct and requires at least a “knowing”
mental state.
Id.
B. The Parties’ Positions
In their arguments to this court, the parties share
some common ground. They agree that Simonov provides
the relevant analytical framework for determining the minimum mental state that attaches to the “does not consent”
element in ORS 163.425(1)(a) and they both accept the “core
principles” upon which the analysis in Simonov relies—most
notably that, assuming there is no express specification of
the required mental state, “knowing” is the minimum mental state that must be proved for a “conduct” element of an
offense and “criminally negligent” is the minimum mental
state that must be proven for a “circumstance” element.
They also appear to agree, consistently with Simonov, that
whether an element is a conduct element requiring proof
of at least a knowing mental state is a matter of legislative intent. See Simonov, 358 Or at 546 (“The determination whether a particular element of an offense within the
Criminal Code requires a culpable mental state and, if so,
what mental state is required, ultimately is a matter of legislative intent.”).
The parties part ways, however, over the significance and effect of certain discussions in Simonov, including
the extent to which the use of one of the alternative grammatical constructions examined in the case is dispositive.
The parties also differ in the conclusions that they draw
from the legislative history of ORS 163.425 and the general
culpability statutes.
C. Legislative intent with respect to what?
As noted, this court in Simonov stated that the
question of what mental state attaches to a particular element of an offense when none is specified is a matter of legislative intent. But, given the context in which that statement
appears, it is not entirely clear what Simonov proposes as
the object of that inquiry. On the one hand, Simonov adverts
802 State v. Haltom
to a default rule whereby, in the absence of any specification
of the required mental state in a statute defining a criminal offense, any one of three mental states—criminal negligence, recklessness, or knowledge—will suffice with respect
to a “circumstance” element, while, for a “conduct” element,
either knowledge or intention is required. 358 Or at 539-
40. In keeping with that default rule, the court in Simonov
looked for clues as to whether the legislature understood the
element of the owner’s nonconsent to the defendant’s use of
a vehicle to be “conduct” or a “circumstance”—specifically
remarking on the grammatical connection between the use
and the nonconsent and the self-evident role of the owner’s
nonconsent in the essential character of the conduct that the
UUV statute proscribed.
On the other hand, the court seemed to incline
toward a direct inquiry into what mental state the legislature intended to attach to the element under consideration when it suggested that the legislature would not have
wished to impose the severe consequence of felony liability
on a defendant who was merely criminally negligent with
respect to the owner’s nonconsent. The latter approach is
not entirely compatible with the idea that a default rule
fills in when a criminal statute fails to specify the applicable mental state or states. Although Simonov may have
been attempting to bridge the gap when it characterized
the default rule as a useful “guideline[ ],” 358 Or at 546, the
attempt is not entirely successful, given that Simonov provides no explanation for thus downgrading what it initially
presented as a categorical rule drawn from the general culpability statutes.
In those circumstances, we think that it is reasonable to initially focus on whether the legislature that
enacted the statute intended or understood the element at
issue as a circumstance or as part of the conduct that the
statute proscribes. Focusing on that issue honors the default
rule that is at the heart of the Simonov analysis. Evidence
directed at determining which mental state the legislature
might have intended to attach to the element at issue should
then be considered to confirm or rebut any tentative conclusion reached under the default rule analysis.
Cite as 366 Or 791 (2020) 803
D. What did the legislature intend? Conduct versus
circumstance.
To determine whether, in enacting the second-degree abuse statute, ORS 163.425, the legislature understood and intended the victim’s nonconsent as part of the
conduct that required proof of at least a knowing mental
state, or instead, as a circumstance requiring proof of a
lesser mental state, i.e., criminal negligence, we consider the
statutory text and context and any helpful legislative history. Gaines, 346 Or at 171-72. In its entirety, ORS 163.425
provides:
“(1) A person commits the crime of sexual abuse in the
second degree when:
“(a) The person subjects another person to sexual
intercourse, oral or anal sexual intercourse or, except as
provided in ORS 163.412, penetration of the vagina, anus
or penis with any object other than the penis or mouth of
the actor and the victim does not consent thereto; or
“(b)(A) The person violates ORS 163.415(1)(a)(B);
“(B) The person is 21 years of age or older; and
“(C) At any time before the commission of the offense,
the person was the victim’s coach as defined in ORS
163.426.
“(2) Sexual abuse in the second degree is a Class C
felony.”
(Emphasis added.) Paragraph (1)(a) is the part of the statute that applies here. The text itself presents this question:
Did the legislature consider the emphasized phrase “and the
victim does not consent thereto” to be part of the essential
character of a prohibited act—subjecting a nonconsenting
person to sexual intercourse, etc.—or merely a circumstance
that attends the conduct, which is the sexual intercourse
itself?
1. The role of the “does not consent” element
Proceeding to context, we begin with what we
see as the most important factor featured in the Simonov
decision—the apparent role of the element under consideration vis-à-vis the central conduct element. Here, defendant
804 State v. Haltom
contends that the victim’s nonconsent is self-evidently part of
the essential character of the conduct that ORS 163.425(1)(a)
proscribes. Defendant observes, in that regard, that the
act or bodily movement that ORS 163.425(1)(a) requires—
sexual intercourse (or some other specified sexual act)—is
ordinarily considered natural and mutually desirable and is
made criminal only when the other person does not consent.
Thus, defendant contends, the “does not consent” requirement is not merely attendant to the sexual conduct that is
proscribed in ORS 163.425(1)(a), in the way that, for example, the value of stolen property is attendant to the prohibited conduct for theft, thereby increasing the degree of theft
that applies but not the essential character of the proscribed
conduct. See Simonov, 358 Or at 541 (so explaining). Rather,
defendant argues, nonconsent changes the essential nature
of the specified forms of sexual conduct, which would otherwise be legal, thereby becoming an integral part of the conduct that the statute proscribes. Accordingly, defendant
concludes, the nonconsent of the victim plays the same role
in the sexual abuse statute that, according to Simonov, the
owner’s nonconsent plays in the UUV statute—meaning
that that element is a conduct element for which a minimum
mental state of knowledge must be proved.
Defendant’s argument faithfully reflects the reasoning that led this court to declare, in Simonov, that it
“border[ed] on the axiomatic” that the lack of consent element of the UUV statute was part of the conduct that was
proscribed. 358 Or at 548. And we find that reasoning even
more compelling when applied to the second-degree sexual abuse statute. It is significant, in that regard, that the
central conduct element in ORS 163.425(1)(a) is worded in
terms of “subject[ing] another person to sexual intercourse.”
The ordinary meaning of the verb “subject,” as relevant
in this context, is “1 a : to bring under control or dominion
: subjugate … b : to reduce to subservience or submission
: make (as oneself) amenable to the discipline and control of
a superior … 4 : to cause to undergo or submit to : make
submit to a particular action or effect : expose.” Webster’s
Third New Int’l Dictionary 2275 (unabridged ed 2002).
“Subject[ing]” another person to a sexual act thus conveys
that the sexual act is imposed on a person who merely
Cite as
366 Or 791 (2020) 805
submits to the imposition. The wording thus carries at least
an implication of unwillingness on the part of the other
person—which implication is clarified and confirmed by the
requirement in ORS 163.425(1)(a) that “the victim does not
consent.” Thus, the “subjects to” wording of the statute’s
central conduct element strongly supports defendant’s contention that the “does not consent” element is an integral
part of the conduct that the statute proscribes.
2. The grammatical construction of the “does not consent” element
The state argues, however, that the grammatical construction of the “does not consent” element in ORS
163.425(1)(a) undermines defendant’s contention. The state
seizes upon the fact that, in contrast to the adverbial presentation of the “without consent” wording in the UUV statute analyzed in Simonov, the “does not consent” wording in
ORS 163.425(1)(a) appears as an independent clause. The
state argues that, under Simonov, the legislature’s choice
to separate the nonconsent phrase from the relevant verb
(“subjects … to sexual intercourse”) as an independent
clause signals an intent to treat a victim’s nonconsent as
an independent circumstance requiring the lesser “criminal negligence” mental state. In fact, the state argues, that
legislative choice is all but dispositive, because it leaves no
textual hook upon which to hang the idea of nonconsent as
part of the proscribed act. The state insists, in that regard,
that the decision in Simonov ultimately was driven by the
court’s point about the grammatical structure of the statutory text, based on the principle that any inquiry into a
statute’s meaning must be rooted in the statute’s text.
Relatedly, the state points to the discussion of
the third-degree sexual abuse statute, ORS 163.415, in
Simonov. That discussion, which appears in a footnote,
(1) identified paragraph (1)(a) of ORS 163.415 as an example
of a grammatical structure that separates the “does not consent” phrasing from the relevant proscribed act (subjecting
another to sexual contact);8 and (2) expressly noted that, in
8
Paragraph (1)(a) of ORS 163.415 provides, in relevant part:
“(1) A person commits the crime of sexual abuse in the third degree if:
806 State v. Haltom
Wier, 260 Or App at 354, the Court of Appeals held that, to
convict a defendant of third-degree sexual abuse under ORS
163.415, the state need only show that the defendant was
criminally negligent with respect to the victim’s lack of consent. Simonov,
358 Or at 547 n 5. The state contends that,
by including that discussion, this court in Simonov all but
confirmed that, in ORS 163.415 and other, related statutes
that define sexual abuse in terms of the victim’s nonconsent to the perpetrator’s sexual acts without joining those
two elements by means of an adverbial construction, the victim’s nonconsent is merely an attendant circumstance and
requires only a criminally negligent mental state. Thus, the
state concludes, Simonov conclusively answered the question that defendant poses here, obviating any need for further examination of the legislature’s intent.
The rule that the state purports to draw from
Simonov, quite simply, is not there. The basic message of
Simonov is that, ultimately, whether an element such as the
victim’s lack of consent should be considered part of the proscribed conduct (and thus as requiring a knowing mental
state) is a matter of legislative intent, to be resolved using
the usual analytical framework. The use of a particular
grammatical construction may lend support to one side of
an interpretive controversy, but it is in no sense the whole
ball game. As with any inquiry into a statute’s meaning,
the final determination as to the legislature’s intent must be
based on an analysis of all the relevant textual, contextual,
and historical evidence that is available.
Neither does Simonov’s brief mention of ORS
163.415(1)(a) and the Court of Appeals’ construction of that
statute in Wier resolve the question in the state’s favor. The
footnote in Simonov merely identified ORS 163.415(1)(a) as an
example of a different grammatical construction that might
suggest a different legislative intent, i.e., that the nonconsent element be treated as a circumstance, requiring a minimum mental state of criminal negligence. See Simonov, 358
“(a) The person 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 under 18 years
of age.”
Cite as 366 Or 791 (2020) 807
Or at 547 n 5. And while the Simonov footnote did include
an observation that, in Wier, the Court of Appeals had concluded that the third-degree sexual abuse statute’s “does not
consent” element is a circumstance, requiring only proof of
criminal negligence, it also clearly conveyed that this court,
in Simonov, was not deciding whether that conclusion was
correct. Id.
Finally, we must acknowledge that Simonov may
have given greater prominence than was warranted to the
legislature’s use of a particular grammatical construction
to convey the nonconsent element in the statute at issue in
that case. While we continue to recognize that the legislature’s choice of one grammatical construction over another
to convey a material element of a crime may be suggestive
of its understanding of the typology of that element, the
diagnostic value of the choice between the two grammatical
constructions discussed in Simonov—and at issue here—is
fairly weak. In ordinary parlance, the adverbial “without
consent” construction and the independent “does not consent” construction are used interchangeably, which makes
it less likely that there was anything purposive or meaningful in the legislature’s choice to use one construction rather
than the other. Indeed, in the closely related third-degree
sexual abuse statute, ORS 163.415, set out below, 366 Or at
808, paragraph (1)(a) uses the “does not consent” construction while the very next paragraph, (1)(b), uses the “without
the consent” construction, without any apparent intent or
reason to treat the one as a circumstance and the other as
part of conduct, in the particular contexts in which the two
constructions appear. Accordingly, we conclude that the fact
that the nonconsent element in ORS 164.425(1)(a) appears
as an independent clause, as opposed to an adverbial one, is
not helpful in determining whether the legislature viewed
that element as a circumstance or part of the proscribed
conduct.
3. The similar “does not consent” wording in ORS
163.415
The state also argues that the notion that the “does
not consent” requirement is part of the conduct proscribed
by ORS 163.425(1)(a) is undermined by the fact that the
808 State v. Haltom
same “does not consent” wording appears in a closely related
statute just mentioned, ORS 163.415, and decidedly is a
circumstance, not conduct, in that context. As noted, ORS
163.415 defines third-degree sexual abuse, a misdemeanor.
It provides, in part:
“(1) A person commits the crime of sexual abuse in the
third degree if:
“(a) The person 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 under 18 years of age; or
“(b) For the purpose of arousing or gratifying the
sexual desire of the person or another person, the person
intentionally propels any dangerous substance at a victim
without the consent of the victim.”
Subsection (1)(a), the state notes, uses the same “subjects
another person to” wording as the second-degree sexual
abuse statute, ORS 163.425(1)(a), except that it substitutes
“sexual contact” for the string of more specific sexual acts
in the latter statute, and also uses the same “and the victim does not consent” wording. The legislature enacted ORS
163.415 as part of the 1971 Criminal Code revision; later, in
1983, it enacted the provision of the second-degree sexual
abuse statute, ORS 163.425(1)(a), at issue in this case.
The state contends that, in light of the present statute’s nearly identical wording to the “does not consent” wording in ORS 163.415(1)(a), we must assume that the legislature’s intent with respect to the role of the “does not consent”
wording was the same. Accordingly, the state argues, if it
can be clearly established that the legislature that enacted
ORS 163.415(1)(a) intended the “does not consent” requirement as a circumstance element to which a minimum mental state of criminal negligence would attach, that same legislative intent carries over to ORS 163.425(1)(a).
The state advances two arguments that, in its
view, show what the legislature intended with respect to
ORS 163.415(1). We already have considered and rejected
Cite as 366 Or 791 (2020) 809
one of those arguments—that, in Simonov, this court gave
its blessing to the Court of Appeals’ holding in Wier that
the “does not consent” element in ORS 163.415(1)(a) is a circumstance that requires only a criminally negligent mental state. As explained above, any vague sense of approval
that might be gleaned from this court’s mention of Wier in
Simonov is overshadowed by the express declaration that
the issue in Wier need not be decided.
The state’s second argument about ORS 163.415(1)(a)
focuses on that statute’s “legislative history,” in the broadest sense of that term. ORS 163.415(1) was enacted as part
of the 1971 Criminal Code, which initially was adopted by
the Criminal Law Revision Commission after a years-long
drafting process, and later was submitted to the legislature
with a recommendation that the draft be enacted. In light
of that history, this court generally treats the Commission’s
records of its proceedings and its commentary on the draft
code as indicative of the legislature’s intent. See State v.
Carpenter, 365 Or 488, 497 n 4,
446 P3d 1273 (2019) (“When
evaluating statutes developed by the Criminal Law Revision
Commission, we look to both the commentary and the discussions that preceded the adoption of the final draft as legislative history for the resulting laws.”).
In its argument to this court regarding the legislature’s intent respecting ORS 163.415(1)(a), the state notably does not turn to the proceedings and commentary that
relate to that statute itself; instead, it cites a subcommittee discussion about an early draft of the general Criminal
Code provisions pertaining to culpability. In that discussion,
one of the draft authors, Professor Arthur, in discussing the
“material elements” of a crime and using rape as an example,
characterized a victim’s nonconsent to sexual intercourse in
that crime as an “attendant circumstance.” Tape Recording,
Criminal Law Revision Commission, Subcommittee No. 1,
Dec 18, 1968, Tape 29, Side 1 (statement of Courtney
Arthur). Much as the Court of Appeals did in Wier, 260 Or
App at 336, the state cites Professor Arthur’s statement as
more or less conclusive evidence that, in enacting the 1971
Criminal Code, the legislature understood the nonconsent
requirement of the offense now codified at ORS 163.415(1)(a)
as a “circumstance” element.
810 State v. Haltom
But Professor Arthur’s statement cannot support
the weight that the state assigns to it. First, that statement was not directed at the statute now codified at ORS
163.415(1)(a)—or at any other statute or draft that was then
under consideration. Rather, it was a comment about the
general (perhaps common law) concept of rape, made in the
context of a discussion about general liability principles as
addressed in the Model Penal Code. Id. That problem aside,
the interpretive value of Professor Arthur’s comment is significantly undercut by the fact that it met with considerable
resistance from some members of the subcommittee and
that the subcommittee ultimately did not resolve whether
the victim’s nonconsent was a circumstance or part of the
conduct.9
In sum, we do not find that the legislative history
on which the state relies supports its contention that the
1971 Legislative Assembly understood and intended the
9
One member of the subcommittee, Spaulding, repeatedly and strenuously
insisted that lack of consent was not an attendant circumstance and that the “conduct you’re talking about is sexual intercourse without the consent of the female.”
Tape Recording, Criminal Law Revision Commission, Subcommittee No. 1,
Dec 18, 1968, Tape 29, Side 1 (statement of Bruce Spaulding). Professor Arthur
then explained:
“No … I believe the conduct is simply the act of intercourse. Which is the
same basically regardless of whether one is married, whether there’s consent
or not. The conduct is the same, but the circumstances are different.”
Id. (statement of Courtney Arthur). Another participant, Paillette, then interjected: “Let’s talk about forcible rape. Force. The element of force … separates this and makes this a different act. Doesn’t it?” When Professor Arthur
responded that force was part of the conduct, Paillette repeated that “that makes
it a different act than voluntary sexual intercourse between a man and his wife.”
Id. Ultimately, other members of the subcommittee joined in, but, as the meeting
minutes reflect, the subcommittee did not resolve the question:
“There followed a lengthy discussion concerning the meaning of the term
‘attendant circumstance.’ Attendant circumstance was applied to hypothetical situations involving statutory rape, burglary and robbery but members
were unable to agree precisely on what the term was intended to cover or
to articulate a clear-cut distinction between attendant circumstance and
conduct.”
Minutes, Criminal Law Revision Commission, Subcommittee No. 1, Dec 18,
1968. In the end, however, Paillette suggested that if the culpability statutes
were amended to provide that the state must prove one of the four defined mental states for each “material element” of the crime, drawing a clear distinction
between an attendant circumstance and conduct would not be necessary. Id. The
subcommittee seemed to accept that solution (it unanimously adopted the proposed amendment), which avoided, rather than resolved the dispute.
Cite as
366 Or 791 (2020) 811
nonconsent requirement in ORS 163.415(1)(a) as a circumstance element. And, in the absence of any clear indication
that the victim’s nonconsent is a circumstance element in
the context of ORS 163.415(1)(a), the assumption that the
1983 Legislative Assembly intended the nonconsent requirement in ORS 163.425(1)(a) to have the same role and meaning that it has in ORS 163.415(1)(a) does not advance the
state’s position that, in ORS 163.425(1)(a), that requirement
is a circumstance rather than conduct.
4. Initial determination: Conduct
As noted above, the initial focus in the present case
is on determining whether the legislature that enacted ORS
163.425(1)(a) intended and understood the requirement in
that statute that “the victim does not consent” as a circumstance element or, instead, as an essential part of the conduct that the statute proscribes. Based solely on the arguments and evidence that pertain to that question (as opposed
to the question of which mental state the legislature likely
intended to attach to the requirement), it appears that the
legislature conceived of the victim’s nonconsent as an integral part of the proscribed conduct. Particularly in light of
the phrasing of the central conduct element—the person
“subjects another person to sexual intercourse”—it is evident
that the conduct that the legislature intended to proscribe is
nonconsensual sexual intercourse and that the requirement
that the victim “does not consent” is an essential aspect of
that conduct. The use of almost identical wording in the
third-degree sexual abuse statute, ORS 163.415(1)(a), does
not detract in any way from that conclusion, given that the
state has failed to show that, in the context of that statute,
the legislature intended the “does not consent” requirement
to be a circumstance. Neither does the legislature’s choice
to convey the requirement in an independent clause rather
than an adverbial phrase contradict its essential role in the
proscribed conduct.
E. What did the legislature intend? “Knowingly” versus
“criminally negligent”
Having thus reached a tentative conclusion that
the nonconsent requirement in ORS 163.415(1)(a) is a conduct element for purposes of the default rule requiring a
812 State v. Haltom
minimum mental state of “knowingly” for conduct elements
and a minimum mental state of “with criminal negligence”
for circumstance elements (assuming that no mental state
is specified in the statute), we turn to the arguments that
might confirm or undermine that conclusion by showing
that the legislature either did or did not intend a knowing
mental state to attach to the requirement.
1. The severity of felony liability
We first consider an argument by the state that
draws on, but seeks to distinguish, a factor on which this
court relied in analyzing the nonconsent element of the UUV
offense at issue in Simonov. In Simonov, we were persuaded
that that nonconsent element was “conduct” requiring proof
of a knowing mental state in part by the fact that UUV is
punishable as a felony, a result that seemed too severe for
a crime that could be committed through mere criminal
negligence:
“Under [an] interpretation [that treats the owner’s nonconsent as a ‘circumstance’ element to which a minimum
mental state of criminal negligence would attach], naïve
trust could subject a person to criminal liability for a felony.
ORS 164.135(2). The severity of that consequence suggests
that the legislature did not contemplate that mere criminal
negligence would suffice to establish criminal liability for
UUV.”
358 Or at 548. The state contends that, although the second-degree sexual abuse statute also imposes felony liability,
that reasoning from Simonov would not support the same
conclusion with regard to application of a criminally negligent mental state to the second-degree sexual abuse statute’s “does not consent” element. That is so, the state argues,
because second-degree sexual abuse is “fundamentally different” from UUV in a number of ways that make a lower
culpable mental state appropriate. First, the state argues,
a “knowing” mental state is inherent in the very concept of
UUV, i.e., “joyriding,” while the same cannot be said about
nonconsensual sexual intercourse or sexual contact. Second,
subjecting a person to sexual intercourse without their consent causes significantly greater, and more lasting, harm
than occurs when a person uses a car without the owner’s
Cite as
366 Or 791 (2020) 813
permission. Third, the circumstance of close physical contact in which second-degree sexual abuse occurs make it
easy to determine whether the other person is consenting to
the sexual contact, which is not always the case in the UUV
context, where the person whose permission is required
often is not present or within easy reach. Fourth, there is
simply a higher level of moral opprobrium that attaches to
unconsented sexual contact than to unconsented use of a
vehicle. And finally, the state asserts, proving a defendant’s
knowledge of the victim’s nonconsent to sexual contact is significantly more difficult than proving a defendant’s knowledge of a vehicle owner’s nonconsent to the vehicle’s use, and
would effectively shift the burden of proof on the issue to
the victim, requiring the state to show that the victim had
physically and verbally resisted. For all those reasons, the
state concludes, it is easy to see why the legislature would
impose felony liability on a sexual abuser who did not know,
but did not make it his or her business to know, whether the
person he or she was subjecting to sexual intercourse had
consented to the act.
The state’s first argument is based on a premise
that is simply incorrect—that a “knowing” mental state
inheres in the very concept of “joyriding.” While, for the reasons explained in Simonov, the law requires proof that a
joyrider actually knew of the car owner’s nonconsent before
he or she may be convicted of UUV, a person clearly can
engage in what is commonly understood as “joyriding” without actual knowledge of that nonconsent.
As to the state’s remaining arguments, they ascribe
views about sexual crimes to the 1983 legislature that, in
all probability, were not ascendant. Now, nearly forty years
after ORS 163.425(1)(a) was enacted, it may seem obvious
that a person who submits to unwanted sex may suffer significant and lasting harm and that a person who pushes
sex on an unwilling partner is especially blameworthy, even
in the absence of actual or threatened physical violence.
But, in 1983, those ideas had only started to gain traction
among legal theorists and were still a subject of debate. See,
e.g., Susan Estrich, Rape, 95 Yale L J 1087, 1121-32 (1986);
Christina M. Tchen, Rape Reform and a Statutory Consent
814 State v. Haltom
Defense, 74 J Crim L & Criminology 1518, 1522-25, 1533-37
(1983); Leigh Bienen, Rape III - National Developments in
Rape Reform Legislation, 6 Women’s Rts L Rep 170, 180-84
(1980). Moreover, in relying on the idea that it is easier to
ascertain whether a person does not consent in the sexual
abuse context than in the UUV context, the state fails to
confront the continuing state of confusion and controversy
that, even to this day, surrounds the question of what,
legally, constitutes sexual consent. See Michal BuchhandlerRaphael, The Failure of Consent: Reconceptualizing Rape
as Sexual Abuse of Power, 18 Mich J Gender & L 147, 159
(2011) (“Acknowledging that the concept of consent itself is
highly contested, not only when viewed through a practical
legal lens but also from a theoretical-philosophical viewpoint, reformers have turned their endeavors to practical
solutions.”); Peter Westen, Some Common Confusions about
Consent in Rape Cases, 2 Ohio St J Crim L 333, 340-42
(2004) (although law predicates liability for rape on victim’s
lack of consent, there is no common concept of consent or
nonconsent).
Moreover, even if the legislature reasonably could
have concluded that felony liability was warranted for a sexual abuser who is merely negligent with respect to the victim’s nonconsent, that is not the same as believing that the
1983 Legislative Assembly did so conclude. The state’s reasoning thus does not constitute the kind of affirmative evidence of a legislative intent with respect to mental state that
might dissuade us from our preliminary conclusion, above,
that the “does not consent” requirement of ORS 163.425(1)(a)
is a conduct element (which, in the absence of any specification of mental state, would require proof of the defendant’s
knowledge).
2. ORS 163.325
The state points to ORS 163.325 as additional
context supporting its position that the legislature did not
intend that a knowing mental state attach to the “does not
consent” requirement in ORS 163.425(1)(a). ORS 163.325
provides:
“(1) In any prosecution under ORS 163.355 to 163.445
in which the criminality of conduct depends on a child’s
Cite as 366 Or 791 (2020) 815
being under the age of 16, it is no defense that the defendant did not know the child’s age or that the defendant reasonably believed the child to be older than the age of 16.
“(2) When criminality depends on the child’s being
under a specified age other than 16, it is an affirmative
defense for the defendant to prove that the defendant reasonably believed the child to be above the specified age at
the time of the alleged offense.
“(3) In any prosecution under ORS 163.355 to 163.445
in which the victim’s lack of consent is based solely upon
the incapacity of the victim to consent because the victim
is mentally defective, mentally incapacitated or physically
helpless, it is an affirmative defense for the defendant to
prove that at the time of the alleged offense the defendant
did not know of the facts or conditions responsible for the
victim’s incapacity to consent.”
Under defendant’s theory of ORS 163.425(1), the state
observes, the victim’s nonconsent is part of the proscribed
conduct to which a minimum mental state of knowledge
attaches, meaning that the state must bear the burden of
proving that the defendant knew that the victim did not
consent—including, when relevant, that the defendant
knew that the victim was mentally or physically incapable of
consenting. However, the state notes, subsection (3) of ORS
163.325 expressly makes the defendant’s lack of knowledge
of the victim’s incapacity to consent an affirmative defense,
meaning that the defendant must bear the burden of proof
on the issue. In the state’s view, defendant’s theory is incompatible with ORS 163.325(3). The state also contends that,
by providing a lack-of-knowledge defense with respect to the
victim’s mental or physical incapacity to consent without
simultaneously providing such a defense with respect to the
victim’s actual nonconsent, ORS 163.325 strongly suggests
that the legislature did not intend that a defendant’s lack of
knowledge of a victim’s actual nonconsent would stand as
a bar to conviction—either as an affirmative defense or as
part of the state’s evidentiary burden.
Defendant counters, however, that ORS 163.325
actually supports his position that the legislature intended
a knowing mental state to attach to the “does not consent”
element of ORS 163.425(1)(a). He argues, specifically, that,
816 State v. Haltom
in providing affirmative defenses to sex crimes based on
the defendant’s lack of knowledge of the victim’s nonconsent
only when the victim is legally, mentally, or physically incapable of consenting, the statute confirms that the general
rule that applies in sex crimes is that the state bears the
burden of proving the defendant’s knowledge of the victim’s
nonconsent. Defendant contends that that general rule follows as a matter of logic, but he also purports to find support for it in the commentary pertaining to the section of
the Criminal Law Revision Commission’s final draft of the
1971 Criminal Code that was enacted and codified as ORS
163.325. With respect to the affirmative defense of mistake
as to the victim’s incapacity to consent, ORS 163.325(3),
defendant points to a statement in the commentary that
follows a description of the defendant’s evidentiary burden:
“The defendant is given the opportunity to exculpate himself but the state is not given the difficult burden of proving
culpable knowledge.” Commentary to Criminal Law Revision
Commission Proposed Oregon Criminal Code, Final Draft
and Report § 106, 108 (July 1970) (emphasis added). With
respect to the affirmative defense of mistake as to the victim’s age, ORS 163.325(2), defendant points to commentary
explaining that, until the California Supreme Court decided
to the contrary in a 1964 case, People v. Hernandez, 61 Cal
2d 529, 393 P2d 673 (1964), it was “universally accepted”
that a defendant’s “knowledge” of the victim’s age was not a
required element of the crime of statutory rape, and that the
Oregon Criminal Code would follow Hernandez—and depart
from “the great weight of authority before Hernandez”—by
providing a defense of mistake of fact as to the victim’s
age. Commentary § 106 at 108-09. With respect to the preHernandez rule, defendant notes, the commentary states:
“The rule that knowledge of the victim’s age is not an essential element of the crime of statutory rape and therefore
justifiable ignorance of age is not a defense in prosecution
for that crime is apparently an exception to the general rule
that guilt attaches only where the accused intended to do the
prohibited act.”
Id. (Emphasis added.)
Defendant argues that those comments, taken
together, show that the legislature understood the common
Cite as 366 Or 791 (2020) 817
law regarding sex crimes historically had imposed strict
liability with respect to a victim’s lack of consent when
the victim is a minor or physically or mentally disabled or
incapacitated, such that, in those instances, the state need
prove only that the victim in fact was disabled or incapacitated or below the age of consent and need not prove anything about the defendant’s mental state as to those conditions. But, defendant argues, the commentary also shows
that the legislature limited that strict liability approach
to particular sex crimes against a specified group of vulnerable victims, effectively carving out an exception to the
“general rule” regarding sex crimes—that the state must
prove that the defendant knew that the victim in fact did
not consent. Thus, defendant argues, while ORS 163.325
provides affirmative mistake-of-fact defenses that are specific to the categories of cases for which a defendant ordinarily would be strictly liable (based on the victim’s age
or incapacity to consent), it does not speak to—and therefore leaves intact—the general rule for sex crimes that do
not fall within those exceptional categories. Accordingly,
defendant concludes, there is no inconsistency in providing
affirmative mistake-of-fact defenses for sex crimes involving certain categories of victims who are deemed incapable
of consenting and requiring the state to bear the burden
of proving the defendant’s actual knowledge of the victim’s
actual nonconsent when the victim is not in one of those
categories. Neither, he argues, does the legislature’s failure to provide a similar mistake-of-fact defense for cases
of actual nonconsent suggest a legislative intent to apply
a less culpable mental state than knowledge in those
cases.
In making that argument, defendant assumes that
when the commentary alludes to the historical strict liability approach to the legally implied nonconsent of underage
victims in sex crime cases and describes that approach as an
exception to the “general rule,” it necessarily is also conveying that the strict liability approach has not been applied to
an “ordinary” victim’s nonconsent and that those “ordinary”
nonconsent cases fall under the “general rule.” In light of
the following paragraph in the same section of commentary,
that assumption may not be warranted:
818 State v. Haltom
“Section 106 also covers mistake as to consent. There
are no reported cases in Oregon ruling on the availability of such a defense in prosecutions for rape. However, it
would appear that if in fact there was no consent, the crime
would be committed. Also, there are no reported cases on
the availability of such a defense in prosecutions for sodomy; however, since consent is not a defense to sodomy, it
would appear that mistake as to consent would not provide
a defense.”
Commentary § 106 at 108 (emphasis added). That paragraph
could be read as stating that the mistake-of-fact provisions
were being adopted against a legal landscape in which no
mental state requirement attached to the element of nonconsent in any of its forms—and that reading would conflict with defendant’s claim that, historically, strict liability
applied only in sex crime cases in which the victim’s nonconsent was legally implied based on age or incapacity.
But, that ambiguous paragraph aside, the commentary to ORS 163.325 appears to support defendant’s position
that there is no inherent contradiction between providing
an affirmative lack-of-knowledge defense when the victim’s
nonconsent is legally implied because of age or incapacity
and requiring the state to prove the defendant’s knowledge
of the victim’s nonconsent when actual, rather than legally
implied, nonconsent is at issue. The state’s argument, once
again, does not establish a legislative intent regarding the
mental state that attaches to the “does not consent” requirement of ORS 163.425(1)(a) that would undermine our preliminary conclusion that the requirement is part of conduct
to which—in the absence of any specification—a knowing
mental state would apply.
3. Legislative history of ORS 163.425
We turn, finally, to the legislative history of ORS
163.425(1)(a), which defendant represents as indisputably
supporting his view that the legislature intended that a
defendant’s knowledge of the victim’s nonconsent be proved.
ORS 163.425(1)(a) was enacted by the 1983 Legislative
Assembly as Senate Bill (SB) 483. In SB 483, the legislature
sought to add a new theory of criminal liability to the first-degree sexual abuse statute—subjecting another person to
Cite as 366 Or 791 (2020) 819
sexual intercourse, sodomy, or sexual penetration when the
victim “does not consent.” SB 713 (1983), a related bill that
was introduced at the same time, sought to replace the “forcible compulsion” element in most first-degree sex crimes
with a combination of specified aggravating factors and a
requirement that the victim “does not consent” to the sexual
conduct that the relevant statute described. The most conspicuous proponent of both bills, who guided them through
committee hearings in both the House and the Senate,
was then-Benton County District Attorney Sandrock. In
Senate committee hearings, Sandrock explained both bills
as addressing a persistent problem for prosecutors: proving
“forcible compulsion” under the strict standard that the first-degree sex crime statutes then employed, i.e., physical force
that overcomes the victim’s earnest resistance or threats
that would cause the victim to be in fear of “serious physical injury” or death. Tape Recording, Senate Committee on
Judiciary, SB 713, Apr 7, 1983, Tape 85, Side A. See also
State v. Ofodrinwa,
353 Or 507, 521,
300 P3d 154 (2013)
(describing history).
In a hearing before the Senate Committee on
Judiciary on SB 713, in response to concerns that the proposed change from a “forcible compulsion” requirement to
a “victim does not consent” requirement might be unfair
to defendants, Sandrock emphasized that, in his view, the
state would have to prove that the victim had explicitly or
implicitly communicated nonconsent to the defendant. That
was so, Sandrock explained, because “the defendant’s intent
has to go to each and every element of the crime, [so] there
has to be proof that he was doing it knowing that it was
without her consent.” Tape Recording, Senate Committee on
Judiciary, SB 713, Apr 7, 1983, Tape 85, Side A (statement
of Peter Sandrock).
Sandrock was wrong. He may have been relying
on, but misremembering, the rule of construction set out
in ORS 161.115(1), which provides, “If a statute defining an
offense prescribes a culpable mental state but does not specify the element to which it applies, the prescribed culpable
mental state applies to each material element of the offense
that necessarily requires a culpable mental state.” The rule
820 State v. Haltom
would not have applied to SB 483, because the bill did not,
and the resulting statute does not, expressly require intent
or any other culpable mental state.
In a subsequent discussion before the same committee regarding SB 483, a member of the criminal defense bar,
Letourneau, expressed his opinion that imposing criminal
liability based on the victim’s nonconsent would be unfair
unless the victim communicated that she did not consent.
He advocated for adding a definition of “does not consent”
that would require the victim to “manifest” her nonconsent.
Tape Recording, Senate Committee on Judiciary, SB 483,
Apr 13, 1983, Tape 91, Side B. Responding before the committee to Letourneau’s testimony, Sandrock stated, again,
that, whether or not it was spelled out in the bill, the state
would bear the burden of proving each and every element
of the offense, including that the defendant knew that the
victim did not consent. Id. The committee asked Letourneau
and Sandrock to work out a solution and report back.
Id.
Sandrock thereafter offered an amendment to SB 713,
which involved adding a definition of “does not consent” to
the general definitions that are applicable to all sex crimes,
which would provide: “ ‘Does not consent’ means that a person does not presently and voluntarily agree by word or conduct, to engage in the sexual contact at issue, and that the
defendant knows at the time of the sexual contact that that
person does not so agree.” Exhibit A, Senate Committee on
Judiciary, SB 713, May 26, 1983.
When the Senate Committee on Judiciary took up
SB 713 again in a later hearing, it decided to gut the entire
proposal to replace the forcible compulsion element in the
first-degree sex crimes and to instead expand the definition
of “forcible compulsion” to include more conduct—“forcible
compulsion” would include threats that caused the victim
to be in fear of any physical injury, rather than only serious
physical injury. Because that new approach did not involve
adding a “does not consent” element to those first-degree
sex crimes, the proposed definition of “does not consent” was
no longer relevant and was not included in the amended
version of SB 713 that was voted out of the committee and
eventually enacted by the legislature. However, at a work
Cite as 366 Or 791 (2020) 821
session on SB 483, the same committee discussed amending
the bill to include the definition of “does not consent” that
Sandrock had offered for SB 713. Tape Recording, Senate
Committee on Judiciary, SB 483, June 7, 1983, Tape 189,
Side B; Exhibit C, Senate Committee on the Judiciary, SB
483, June 7, 1983. Two members of the committee suggested, and committee counsel apparently agreed, that adding the definition was unnecessary because the same “does
not consent” wording already appeared in a related statute
(present-day ORS 163.415) and had been interpreted by the
courts in that context. Tape Recording, Senate Committee
on Judiciary, SB 483, June 7, 1983, Tape 189, Side B (statements of Sen Gardner and Sen Hendrickson). In fact, the
“does not consent” wording had not been interpreted by the
courts. Following the discussion, the committee decided
against including the proposed definition of “does not consent” in the bill and ultimately voted SB 483 out of committee with a “do pass” recommendation.
When the House Committee on Judiciary took up
the bill, Sandrock testified in its favor. In the course of his
testimony, Sandrock spoke about the meaning of “does not
consent” and his view that the defendant would have to
know of the victim’s nonconsent, regardless of any express
statement to that effect in the statute:
“The code does not contain a definition of what it means
to act without consent. All I can say is 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.
“…
“Perhaps the other perceived problem is how is the prospective defendant to know that this is occurring without
consent. … Well, I think it is a fundamental precept of
criminal law that the mental element of the crime—in
this case it would be intentionally or knowingly, applies
to every other element of the crime. … In other words,
the state would have to prove beyond a reasonable doubt
that the defendant knew that it was without her consent
that he was having that intercourse. Over on the Senate
side I had a series of negotiations with Don Letourneau of
822 State v. Haltom
the Metropolitan Public Defender’s Office. And they supported the bill with the proviso that there was a definition
of the term ‘without consent.’ And I agreed with him to a
proposed definition of ‘without consent’ as something that
would be fitting, although in my mind not necessary for the
bill. For whatever reason, that definition was not included
as the bill was passed out.”
Tape Recording, House Committee on Judiciary, June 30,
1983, Tape 485, Side A. When asked why the Senate had
not included the definition that he and Letourneau had
devised in SB 483, Sandrock could only speculate that it
had been overlooked. One of the bill’s sponsors, Senator
Hendrickson, was present, and she told the House committee that, at the Senate committee work session in which the
proffered definition had been considered, the committee had
not been aware that the definition was the product of an
agreement between Sandrock and “the public defenders.”
In any event, Hendrickson added, the Senate committee
had concluded that, given that the victim’s nonconsent was
an element of other crimes that were in statutes that the
courts had interpreted, including the definition that had
been offered would be “redundant” and “unnecessary.” She
also expressed concern about derailing the bill’s enactment
by adding an amendment in which the Senate would have
to concur so late in the legislative session. The bill was left
as it was, and the House committee voted unanimously in
favor of a “do pass” recommendation. Tape Recording, House
Committee on Judiciary, June 30, 1983, Tape 486, Side A.
See also Ofodrinwa, 353 Or at 521-24.
It is difficult to know what to make of the foregoing
legislative history, which shows that the committees that
were involved in drafting SB 483 were presented with, but
declined to adopt, an amendment that spoke directly to the
mental state issue in this case. Perhaps the most plausible
interpretation of what transpired is that the legislators in
the two committees shared, or at least wished to accommodate, the concerns of public defenders, by including a definition of “does not consent” in the bill that expressly included
a knowledge requirement, but were persuaded by Sandrock
and others that doing so was unnecessary because a knowing mental state would be required under existing law.
Cite as 366 Or 791 (2020) 823
Under that interpretation of the legislative history, the fact
that the committees were wrong about what the existing law
required would not negate the fact of their belief in what it
required. Neither would it negate their understanding and
intentions with respect to SB 483 that were based on that
erroneous belief. Whether the entire legislature was operating under the same mistaken belief when it enacted SB
483 is another question, to which we have no answer. But,
so understood, the legislative history provides some support
for the idea that the legislature understood and intended
that the bill would require the state to prove that a defendant knew that the victim did not consent to the sexual
intercourse.
Furthermore, the legislature history quite clearly
shows that, in rejecting an amendment that expressly would
have required the state to prove a defendant’s knowledge
of the victim’s nonconsent, the legislature was not rejecting
the idea that the amendment conveyed. In other words, the
legislative history does not support the state’s contention
here—that the legislature intended and understood that
proof of a knowing mental state would not be required with
respect to the statute’s “does not consent” requirement.
F. Synthesis
As discussed above, the primary inquiry that the
Simonov rule contemplates is an inquiry into whether the
legislature intended and understood the element at issue as
a circumstance or as an integral part of the proscribed conduct. With respect to ORS 163.425(1)(a), we have concluded
that the legislature understood the requirement that the
victim “does not consent” to the sexual intercourse to which
the defendant subjects him or her as part of the proscribed
conduct, which, under the default rule set out in Simonov,
would require proof of at least a knowing mental state. As
to the arguments that seek to directly show that the legislature did, or did not, intend to require a knowing mental state with respect to the “does not consent” requirement
(which we view as secondary), none have dissuaded us from
our conclusion that the requirement is a part of conduct,
requiring a knowing mental state, and some appear to provide some support for that conclusion.
824 State v. Haltom
III. CONCLUSION
We conclude that the requirement in ORS 163.425(1)(a)
that the victim “does not consent” is an integral part of
the conduct that the statute proscribes, and that proof of a
minimum mental state of “knowingly,” as defined in ORS
161.085(8), is required with respect to that element. In this
case, that means that the trial court erred in instructing
the jury that it could find defendant guilty if he acted negligently, recklessly, or with knowledge with respect to that
element. It also means that the trial court erred in entering
a judgment of conviction based on the jury’s determination
that defendant had acted recklessly with respect to that
element.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.
