Rape in the first degree
Source:
Section 163.375 — Rape in the first degree, https://www.oregonlegislature.gov/bills_laws/ors/ors163.html
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Notes of Decisions
Under former similar statute (ORS 163.210)
There was no rule in this state that either required or prohibited a cautionary instruction concerning the victim’s credibility. State v. Stocker, 11 Or App 617, 503 P2d 501 (1972), Sup Ct review denied
In general
An indictment for rape that does not specifically state that the female was not the defendant’s wife will withstand a demurrer for insufficiency. State v. Aronhalt, 18 Or App 577, 526 P2d 463 (1974), Sup Ct review denied
Sexual abuse in the first degree was held not to be a lesser-included-offense of attempted rape. State ex rel Juvenile Dept. v. Knox, 20 Or App 455, 532 P2d 245 (1975)
Although evidence included statement by victim made to cause defendant to believe that she was consenting to intercourse, but made with ultimate motive of opening avenue for her escape, evidence of rape was sufficient to submit to jury. State v. Forsyth, 20 Or App 624, 533 P2d 176 (1975)
Trial court was not required to merge crimes of first degree rape and first degree sodomy (ORS 163.405) for conviction and sentencing. State v. Kendrick, 31 Or App 1195, 572 P2d 354 (1977), Sup Ct review denied
Where defendant opposed state’s motion, to consolidate charges resulting from same conduct, defendant waived double jeopardy protection and the two findings of guilty were properly merged into one conviction for sentencing. State v. Brissette, 31 Or App 1243, 572 P2d 1068 (1977)
Where defendant failed to argue at trial that there was no evidence of penetration, issue could not be raised on appeal. State v. Tricker, 37 Or App 525, 588 P2d 48 (1978)
Evidence that, inter alia, defendant grabbed and slapped victim, threw her in car, struck her on head when she tried to escape, and held her hands behind her head while having sexual intercourse with her was sufficient to show lack of consent and forcible compulsion. State v. Dorsey, 44 Or App 721, 607 P2d 204 (1980)
In prosecution for attempted rape under this section and ORS 161.405, evidence that defendant asked victim “Can I rape you?” and then backed up his car toward her after she walked away does not prove that defendant intended to have forcible sexual intercourse with victim. State v. Graham, 70 Or App 589, 689 P2d 1315 (1984), Sup Ct review denied
Where defendant forcibly compelled his son to have sexual intercourse with his stepdaughter, defendant was guilty of rape in first degree by operation of this section and ORS 161.155. State v. Harvey, 303 Or 351, 736 P2d 191 (1987)
Trial court was not required to consolidate sentences for six separate convictions, one count each of first and third degree rape and two counts each of first and third degree sodomy because each first degree crime required proof of element not necessary to prove corresponding third degree crime and legislature addressed distinct social concern in enacting each of statutory alternatives on which defendant was convicted. State v. Crotsley, 308 Or 272, 779 P2d 600 (1989)
Where jury was entitled to infer from evidence that defendant who was charged with rape in first degree subjected victims to “forcible compulsion,” one element of charged crime in or within one mile of Multnomah County, Multnomah County trial court did not err in rejecting defendant’s lack of venue argument and denying his motion or judgment of acquittal. State v. Sanarrita, 102 Or App 349, 794 P2d 457 (1990)
Where record contained evidence from which rational jury could infer that defendant threatened, expressly or impliedly, to use physical force against another, trial court did not err in denying defendant’s motion for acquittal. State v. Odoms, 117 Or App 1, 844 P2d 217 (1992), Sup Ct review denied
Court refused to read definition of daughter in ORS 109.041 into this section. State v. Pennington, 120 Or App 360, 852 P2d 900 (1993), Sup Ct review denied
Prohibition against sexual intercourse with person “incapable of consent by reason of mental defect” is not vague under federal constitutional standards. Anderson v. Morrow, 371 F3d 1027 (9th Cir. 2004)
“Subjected to forcible compulsion” describes conduct that is material element requiring proof of culpable mental state. State v. Nelson, 241 Or App 681, 251 P3d 240 (2011)
To constitute “forcible compulsion” under section, physical force must be greater in degree or different in kind from simple movement and contact inherent in sexual contact at issue and must be sufficient to compel victim to submit to or engage in sexual contact against the victim’s will. State v. O’Hara, 251 Or App 244, 283 P3d 396 (2012), Sup Ct review denied