ORS 163.405
Sodomy in the first degree


(1)

A person who engages in oral or anal sexual intercourse with another person or causes another to engage in oral or anal sexual intercourse commits the crime of sodomy in the first degree if:

(a)

The victim is subjected to forcible compulsion by the actor;

(b)

The victim is under 12 years of age;

(c)

The victim is under 16 years of age and is the actor’s brother or sister, of the whole or half blood, the son or daughter of the actor or the son or daughter of the actor’s spouse; or

(d)

The victim is incapable of consent by reason of mental incapacitation, physical helplessness or incapability of appraising the nature of the victim’s conduct.

(2)

Sodomy in the first degree is a Class A felony. [1971 c.743 §114; 1989 c.359 §4; 2017 c.318 §5; 2021 c.82 §5]

Source: Section 163.405 — Sodomy in the first degree, https://www.­oregonlegislature.­gov/bills_laws/ors/ors163.­html.

Notes of Decisions

Trial court was not required to merge crimes of first degree sodomy and first degree rape (ORS 163.375) for conviction and sentencing. State v. Kendrick, 31 Or App 1195, 572 P2d 354 (1977), Sup Ct review denied

Where defendant placed bound victim in rear seat of car and anally and orally committed sodomy, the two acts of sodomy constituted two separate crimes, separately punishable. State v. Steele, 33 Or App 491, 577 P2d 524 (1978), Sup Ct review denied

Where record of trial of defendant convicted under this section clearly indicated that Judge and defense counsel were not aware of alternative provisions for dealing with sexually dangerous persons, pursuant to ORS 426.675, matter was remanded for reconsideration. State v. Morse, 35 Or App 7, 580 P2d 1038 (1978)

Testimony of defendant’s daughter, who was victim’s babysitter, that daughter reported to girl’s mother that defendant had “tingled” victim, was prejudicial hearsay. State v. McGaughy, 39 Or App 275, 591 P2d 1194 (1979)

Sexual abuse charge was merged in sodomy conviction where first sexual contact and at least one act of sodomy were not so separated in time, intervening events, or other circumstances as not to be consecutive steps in sodomy. State v. Harris, 287 Or 335, 599 P2d 456 (1979)

In prosecution under this section, evidence that defendant was being sexually fondled by his wife and that he attempted to expose himself to children in back seat of his car was probative of sexual arousal and was therefore relevant evidence of sexual contact with victim. State v. Fitch, 47 Or App 205, 613 P2d 1108 (1980)

Failure to merge sodomy and sexual abuse convictions was not error where events were separated by several hours, occurred in different locations and settings, and were separated by a number of intervening events. State v. Bateman, 48 Or App 357, 616 P2d 1206 (1980)

Defendant who forcibly compels another person to engage in deviate sexual intercourse with third person can be convicted of sodomy and rape under this section. State v. Harvey, 303 Or 351, 736 P2d 191 (1987)

Where petitioner sought review of order setting parole release date arguing that Board erred in applying risk aggravation factor C, it was determined that victims’ ages as defining element of crimes and their particular vulnerability due to youth are not same and petitioner’s hearing satisfied due process requirements. Jarvis v. State Board of Parole, 96 Or App 322, 773 P2d 3 (1989), Sup Ct review denied

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 defendant was charged only with sodomy and jury could not rationally and consistently conclude that he intended only sexual abuse, evidence did not support instruction for attempted sexual abuse. State v. Fox, 111 Or App 362, 826 P2d 89 (1992), Sup Ct review denied

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

Prohibition against deviate 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)

Law Review Citations

51 OLR 501-504 (1972)

163.005
Criminal homicide
163.095
“Aggravated murder” defined
163.105
Sentencing options for aggravated murder
163.107
Murder in the first degree
163.109
Alternative proof of certain victims of murder in the first degree
163.111
Pleading, proof and stipulation regarding previous conviction element in prosecution for murder in the first degree
163.115
Murder in the second degree
163.117
Causing or aiding suicide as defense to charge of murder
163.118
Manslaughter in the first degree
163.125
Manslaughter in the second degree
163.135
Extreme emotional disturbance as affirmative defense to murder in the second degree
163.145
Criminally negligent homicide
163.147
Crime category classification for manslaughter in the second degree and criminally negligent homicide
163.149
Aggravated vehicular homicide
163.150
Sentencing for aggravated murder
163.155
Sentencing for murder of pregnant victim
163.160
Assault in the fourth degree
163.165
Assault in the third degree
163.168
Crime category classification for assault in the third degree
163.175
Assault in the second degree
163.185
Assault in the first degree
163.187
Strangulation
163.190
Menacing
163.191
Intimidation by display of a noose
163.192
Endangering a person protected by a Family Abuse Prevention Act restraining order
163.193
Assisting another person to commit suicide
163.195
Recklessly endangering another person
163.196
Aggravated driving while suspended or revoked
163.197
Hazing
163.200
Criminal mistreatment in the second degree
163.205
Criminal mistreatment in the first degree
163.206
Exceptions to criminal mistreatment
163.207
Female genital mutilation
163.208
Assaulting a public safety officer
163.211
Definitions for ORS 163.211 to 163.213
163.212
Unlawful use of an electrical stun gun, tear gas or mace in the second degree
163.213
Unlawful use of an electrical stun gun, tear gas or mace in the first degree
163.215
Definitions for ORS 163.215 to 163.257
163.225
Kidnapping in the second degree
163.235
Kidnapping in the first degree
163.245
Custodial interference in the second degree
163.257
Custodial interference in the first degree
163.261
Definitions for ORS 163.263 and 163.264
163.263
Subjecting another person to involuntary servitude in the second degree
163.264
Subjecting another person to involuntary servitude in the first degree
163.266
Trafficking in persons
163.269
Victim assertion of defense of duress
163.275
Coercion
163.285
Defense to coercion
163.305
Definitions
163.315
Incapacity to consent
163.325
Ignorance or mistake as a defense
163.345
Age as a defense in certain cases
163.355
Rape in the third degree
163.365
Rape in the second degree
163.375
Rape in the first degree
163.385
Sodomy in the third degree
163.395
Sodomy in the second degree
163.405
Sodomy in the first degree
163.408
Unlawful sexual penetration in the second degree
163.411
Unlawful sexual penetration in the first degree
163.412
Exceptions to unlawful sexual penetration prohibition
163.413
Purchasing sex with a minor
163.415
Sexual abuse in the third degree
163.425
Sexual abuse in the second degree
163.426
Crime category classification for sexual abuse in the second degree
163.427
Sexual abuse in the first degree
163.431
Definitions for ORS 163.431 to 163.434
163.432
Online sexual corruption of a child in the second degree
163.433
Online sexual corruption of a child in the first degree
163.434
Provisions applicable to online sexual corruption of a child
163.435
Contributing to the sexual delinquency of a minor
163.445
Sexual misconduct
163.448
Definitions for ORS 163.452 and 163.454
163.452
Custodial sexual misconduct in the first degree
163.454
Custodial sexual misconduct in the second degree
163.465
Public indecency
163.466
Classification of felony public indecency
163.467
Private indecency
163.472
Unlawful dissemination of an intimate image
163.476
Unlawfully being in a location where children regularly congregate
163.479
Unlawful contact with a child
163.505
Definitions for certain provisions of ORS 163.505 to 163.575
163.515
Bigamy
163.525
Incest
163.535
Abandonment of a child
163.537
Buying or selling a person under 18 years of age
163.545
Child neglect in the second degree
163.547
Child neglect in the first degree
163.555
Criminal nonsupport
163.565
Evidence of parentage
163.575
Endangering the welfare of a minor
163.577
Failing to supervise a child
163.580
Display of sign concerning sale of smoking devices
163.665
Definitions
163.670
Using child in display of sexually explicit conduct
163.676
Exemption from prosecution under ORS 163.684
163.682
Exceptions to ORS 163.665 to 163.693
163.684
Encouraging child sexual abuse in the first degree
163.686
Encouraging child sexual abuse in the second degree
163.687
Encouraging child sexual abuse in the third degree
163.688
Possession of materials depicting sexually explicit conduct of a child in the first degree
163.689
Possession of materials depicting sexually explicit conduct of a child in the second degree
163.690
Lack of knowledge of age of child as affirmative defense
163.693
Failure to report child pornography
163.700
Invasion of personal privacy in the second degree
163.701
Invasion of personal privacy in the first degree
163.702
Exceptions to ORS 163.700 and 163.701
163.705
Polygraph examination of victims in certain criminal cases prohibited
163.707
Forfeiture of motor vehicle used in drive-by shooting
163.709
Unlawful directing of light from a laser pointer
163.715
Unlawful use of a global positioning system device
163.730
Definitions for ORS 30.866 and 163.730 to 163.750
163.732
Stalking
163.735
Citation
163.738
Effect of citation
163.741
Service of stalking protective order
163.744
Initiation of action seeking citation
163.750
Violating a court’s stalking protective order
163.753
Immunity of officer acting in good faith
163.755
Conduct for which stalking protective order may not be issued
163.760
Definitions for ORS 163.760 to 163.777
163.763
Petition to circuit court for relief
163.765
Restraining order
163.767
Hearing
163.770
Appearance by telephone or electronic communication device
163.773
Enforcement of restraining order
163.775
Renewal and modification of restraining order
163.777
Fees or undertaking may not be required
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