Sexual abuse in the first degree
Source:
Section 163.427 — Sexual abuse in the first degree, https://www.oregonlegislature.gov/bills_laws/ors/ors163.html
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Notes of Decisions
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
Photographs of victims’ partially nude bodies were sufficient to show substantial step toward commission of sexual abuse in first degree. State v. Williams, 313 Or 19, 828 P2d 1006 (1992)
Proof of incapacity to consent also proves element of lack of consent for lesser included offense of sexual abuse in third degree (ORS 163.415). State v. Barnes, 209 Or App 332, 147 P3d 936 (2006), Sup Ct review denied
Harassment by touching sexual or intimate parts of another (ORS 166.065) is not lesser included offense of sexual abuse in first degree. State v. Barnes, 209 Or App 332, 147 P3d 936 (2006), Sup Ct review denied
Presence of more than one element that converts lower degree of sexual abuse to higher degree of sexual abuse does not convert defendant’s single act into separate crimes. State v. Parkins, 346 Or 333, 211 P3d 262 (2009)
“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 be forcible compulsion, act must cause or result in particular instance of sexual contact that is focus of charge. State v. Marshall, 350 Or 208, 253 P3d 1017 (2011)
Use of physical force constitutes forcible compulsion is: 1) greater in degree or different in kind from simple act of touching intimate part of another; and 2) sufficient to compel victim to submit to or engage in sexual contact against victim’s will. State v. Marshall, 350 Or 208, 253 P3d 1017 (2011)
Victim, who was asleep at time crime was committed, was physically helpless and incapable of consent. State v. Marker, 263 Or App 669, 329 P3d 781 (2014)
Because defendant did not violate separate “statutory provisions,” violations are not eligible for merger under ORS 161.067 where defendant was charged with three counts of sexual abuse in first degree for violating different subparagraphs under this section. State v. Black, 270 Or App 501, 348 P3d 1154 (2015)
For purposes of U.S. Sentencing Guidelines Manual, conviction under this section for sexual abuse of minor or forcible sex offense entails conviction of elements of generic federal definition of crime of violence. United States v. Rocha-Alvarado, 843 F3d 802 (9th Cir. 2016)