2015 ORS 163.325¹
Ignorance or mistake as a defense

(1) In any prosecution under ORS 163.355 (Rape in the third degree) to 163.445 (Sexual misconduct) in which the criminality of conduct depends on a childs being under the age of 16, it is no defense that the defendant did not know the childs age or that the defendant reasonably believed the child to be older than the age of 16.

(2) When criminality depends on the childs 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 (Rape in the third degree) to 163.445 (Sexual misconduct) in which the victims 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 victims incapacity to consent. [1971 c.743 §106]

Notes of Decisions

Under this sec­tion, it is no de­fense to charge of rape or sodomy that defendant reasonably believed victim to be older than particular age if that age is under 16. State v. Hoehne, 78 Or App 479, 717 P2d 237 (1986)

Relevant inquiry is whether defendant was aware of condi­tion that in fact rendered victim unable to con­sent, not whether defendant was aware that effect of condi­tion was to render victim unable to con­sent. State v. Anderson, 137 Or App 36, 902 P2d 1206 (1995), Sup Ct review denied

Affirmative de­fense that defendant lacked knowledge that victim was incapable of con­sent does not unconstitu­tionally shift burden of proof because knowledge of incapacity is not re­quired ele­ment of crime. State v. Phelps, 141 Or App 555, 920 P2d 1098 (1996), Sup Ct review denied

Notes of Decisions

Under evidence that defendant inten­tionally touched victims buttocks through clothing, whether such con­duct constituted sexual contact of victims intimate parts was ques­tion for jury. State v. Buller, 31 Or App 889, 581 P2d 1263 (1977)

Genitalia and breasts are intimate parts as matter of law under this sec­tion, and undeveloped genitalia and breasts of children are included within defini­tion. State v. Turner, 33 Or App 157, 575 P2d 1007 (1978), Sup Ct review denied

Rule that state is not permitted to introduce evidence of other crimes or bad acts solely to prove defendant acted as on prior occasions is strictly applied in sex crime cases, even those involving deviate sexual behavior, in so far as con­duct with per­sons other than victim is concerned. State v. Sicks, 33 Or App 435, 576 P2d 834 (1978)

Law Review Cita­tions

51 OLR 428, 518-522, 555 (1972)

Chapter 163

Law Review Cita­tions

51 OLR 427-637 (1972)


1 Legislative Counsel Committee, CHAPTER 163—Offenses Against Persons, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors163.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 163, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano163.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.