The Oregon Criminal Code provides that a person is considered incapable of consenting to a sexual act if the person is:
The law further provides that “a lack of verbal or physical resistance does not, by itself, constitute consent but may be considered by the trier of fact along with all other relevant evidence.” See ORS 163.315
The Rules of Consent
A person under 18 cannot consent to a sexual act.
Oregon Law provides that a person under 18 years of age cannot consent to a sexual act. In Oregon, you must be at least 18 years old to give valid consent. Consent given by an individual under the age of 18 will not be presumed valid. However, there may be defenses available, such as the defense specified in ORS163.345, nicknamed the “Romeo and Juliet” defense. This defense applies when two individuals who are both at least 15 years of age, and are within three years of one another’s age, engage in intercourse. Applied successfully, this defense rebuts the assumption that the consent is de facto invalid because one or both of the parties were under 18 years old. However, both individuals must still have voluntarily consented.
Your ignorance or mistake may not be a defense. ORS 163.325 provides that in certain sex crime prosecutions ignorance or mistake is a limited defense when it comes to knowing the age of your sexual partners. An affirmative defense may apply if the defendant reasonably believed the child to be above a specified age at the time of the alleged offense for crimes that depend on the child being under a specified age other than 16. If a child is under 16 years of age, however, it is not a defense that a defendant reasonably believed the child to be older than the age of 16. Even if they showed you a fake ID, it is a strict liability offense to engage in sexual activity with a minor under 16 years of age.
Other Factors for Consent: Physical Helplessness, Mental Incapacitation or Mental Defect.
In addition to age, other factors must be met in order for consent to be presumed valid. For instance, consent must have been given by an individual of sound mind. If there is evidence of mental defect, the person was unconscious or asleep, whether the person was under the influence of drugs and/or alcohol, or even if the individual believes that they were drugged, these circumstances could be the basis for and arrest and prosecution for major felony sex crimes.
Importance of Verbal Consent
Under Oregon law, lack of physical or verbal resistance alone is not enough to find consent. In these instances, a judge or jury will look into the circumstances surrounding the alleged crime in order to determine of whether a person was capable of consent. However, the best way to avoid difficult legal situations in court is to ensure that you have enthusiastic and verbal consent from your sexual partner before anything happens.
Contact a Criminal Defense Attorney
If you or your loved one has been accused of sexual misconduct, contact a lawyer immediately. Sex crimes in Oregon can carry mandatory minimum sentences under Ballot Measure 11. In some circumstances, Jessica’s Law may also apply, which carries a mandatory minimum of 300 months imprisonment.
What you need to know when accused of sexual misconduct at school
You had a great weekend. You met someone new. Now it’s Monday, and you just received a Student Conduct Notice. Your immediate response is required. Call a lawyer first.
How you respond to a student conduct notice could impact more than just your college career because you are being investigated for sexual misconduct. The University can expel you. The school will share your information with law enforcement agencies and criminal prosecutors. You could be be charged with a crime. Whatever you said to the school can later be used against you in court. You could become a convicted felon. You could lose the rights to vote, to sit on a jury, or to own or possess a firearm. You can be denied future employment and housing. You could go to prison. You may have to register as a sex offender.
Your parents sent you to college to get a degree, not a criminal record. Call a lawyer first.
What is sexual misconduct? Sexual misconduct is a violation of your school’s student conduct code relating to sexual harassment or sexual violence. Each school has a slightly different version of a sexual misconduct policy. The Student Conduct Code at your school provides the applicable definitions and describes the offenses that amount to sexual misconduct. In many circumstances, the same conduct that violates a school’s conduct code also amounts to a sex crime under Oregon law. Violation of a the sexual misconduct code leads to a negative notation on the student transcript, suspension from school, or even a permanent expulsion.
Why is the school involved in off-campus conduct? The police are not the only authorities off campus. It is not a defense to a student conduct code violation that the behavior occurred off campus because college and university students in Oregon may be held responsible for their misconduct both on- and off-campus. For example, the UO, OSU, and PSU conduct codes all provide for jurisdiction over their students’ off-campus behavior.
What can I expect from the student conduct process? Federal law requires colleges and universities to prevent and respond to reports of sexual violence. Title IX of the Educational Amendments of 1972 (“Title IX”) is a federal civil rights law that prohibits discrimination on the basis of sex in federally funded educational programs and activities. The U.S. Department of Education has provided universities specific guidance for handling sexual harassment and sexual violence. On April 4, 2011, the Office for Civil Rights (OCR) in the U.S. Department of Education issued a Dear Colleague Letter on student-on-student sexual harassment and sexual violence (“DCL”). Available at http://www.ed.gov/ocr/letters/colleague-201104.html. Under that federal mandate, colleges and universities have eliminated many procedural due process rights that protect the rights of accused students.
What rights do I have in the student conduct process? An administrator will not typically advise you of your constitutional rights. You may be told that the conduct process is not a criminal process. You may even be told that federal law protects your student information. Do not be lulled into a false confession. The administration shares information with law enforcement. Campus administrators have eliminated most of the procedural safeguards that should be provided to you. You will not be permitted to cross-examine witnesses. You may be denied the right to face your accuser. You will not have subpoena power to compel the production of evidence or the attendance of witnesses in your favor. You will have access to some records and information, which may include police reports and witness statements. However, these reports may be heavily redacted and extremely difficult to read. You will have some opportunity to respond to that material. At a hearing, you may be permitted to submit some questions to the accuser or witnesses. Your questions will be less effective because an administrator may choose to ignore or rephrase your questions to make them less effective.
The major universities in Oregon provide access to their student conduct codes online. See e.g. University of Oregon Student Conduct Code at https://policies.uoregon.edu/vol-3-administration-student-affairs/ch-1-conduct/student-conduct-code, Oregon State University Student Conduct Code at http://leadership.oregonstate.edu/sites/leadership.oregonstate.edu/files/policies/student_conduct_2-25-15_576-15.pdf, and Portland State University Student Conduct Code at https://www.pdx.edu/dos/psu-student-code-conduct#Jurisdiction.
What can I do if my school denies me my rights? You may have remedies in state or federal court when your school ignores its own procedures or deprives you of your constitutional rights. Your advisor or lawyer should be able to explain those rights to you. However, an advisor provided to you by your college or university may be contractually prohibited from representing you in court to review the record of your case or from bringing a lawsuit against your school for violating your constitutional rights. You should consult with a private attorney with experience in civil rights, criminal defense, and student conduct defense in order to fully understand your options.
Why do I need a lawyer to handle a university sexual misconduct allegation? Your college or university has accused you of misconduct that may also amount to a sex crime. Anything you say to the college or university can and will be used against you in a criminal prosecution. You are facing a potential prison sentence and sex offender registration. You need a lawyer.
About Bryan Boender. Bryan Boender is a criminal defense lawyer in Eugene, Oregon. He practices student conduct defense. Mr. Boender has represented University of Oregon and Oregon State University Students accused of Title IX offenses, sexual misconduct, sexual harassment, and sexual violence. Bryan Boender also has experience representing fraternities and students accused from misdemeanor offenses and major felonies, including Measure 11 offenses.
By: Bryan Boender, Attorney